Citation Nr: 1753596 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 14-15 772 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Abdelbary, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1968 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In June 2017, the Veteran testified at a hearing before undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. FINDING OF FACT The evidence supports a finding that the Veteran's bilateral hearing loss is related to a disease or injury incurred in or aggravated by active service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107(b) (West 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION A. Legal Principles and Regulations Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, including organic diseases of the nervous system such as sensorineural hearing loss, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. VA considers high frequency sensorineural hearing loss to be an organic disease of the nervous system. See Memorandum from Under Secretary of Health to Under Secretary for Benefits, Characterization of High Frequency Sensorineural Hearing Loss, October 4, 1995. Pursuant to 38 C.F.R. § 3.303 (b), where a chronic disease such as sensorineural hearing loss is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303 (b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101 (3) or 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2017). B. Analysis The Veteran contends that his current hearing loss was caused by noise exposure during his military service. Specifically, the Veteran contends that while in Vietnam during combat, he was in many firefights, in which he was exposed to heavy gunfire and explosions, without hearing protection. See June 2017 Hearing Testimony, 3. In this regard, his DD-214 indicates that during his active duty in the U.S. Army, he served as an infantryman. At the outset, the Board finds the Veteran's bilateral hearing loss meets the requirements of impaired hearing under VA regulations. VA examination findings show the left ear with 100 percent speech discrimination. The Veteran's auditory thresholds in his left ear in decibel (dB) at a loss at the puretone threshold of 500 Hertz (Hz) is 20, with a 20 dB loss at 1000 Hz, a 30 dB loss at 2000Hz, a 60 dB loss at 3000 Hz, and a 60 dB loss at 4000 Hz. The average decibel loss is 42.5 in the left ear. The right ear shows 100 percent speech discrimination. The Veteran's auditory thresholds in his right ear in decibel (dB) at a loss at the puretone threshold of 500 Hertz (Hz) is 20, with a 15 dB loss at 1000 Hz, a 25 dB loss at 2000 Hz, a 55 dB loss at 3000 Hz, and a 50 dB loss at 4000 Hz. See May 2012 VA audiological examination report. Thus, as the auditory thresholds for at least three of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) are 26 decibels or greater, the Veteran's bilateral hearing loss meets the requirements for impaired hearing, and the Veteran has satisfied the first element of a current disability. In terms of whether the Veteran has in-service noise exposure, and whether such in-service noise exposure is related to his current hearing loss, the Board finds the evidence supports a finding that the Veteran's current hearing loss is related to his in-service noise exposure. In a February 2012 audiology note, the VA examiner noted in-service noise exposure, to include gunfire and artillery. The VA examiner diagnosed the Veteran with bilateral sensorineural hearing loss. See February 6, 2012 VA treatment records. In a May 2012 VA examination report, the VA examiner diagnosed the Veteran with bilateral sensorineural hearing loss. However, the VA examiner opined that because the Veteran had hearing within normal limits at separation, then it was not at least as likely as not that the Veteran's hearing loss was caused or a result of military service. Notably, within the same report, the same VA examiner opined that the Veteran's tinnitus, which was also due to military noise exposure, was at least as likely related to service. In an April 2014 audiological examination report, Dr. R.Y., an audiologist, noted that the pure tone testing revealed sensorineural hearing loss bilaterally. The VA audiologist ultimately opined that it was more likely than not that the Veteran's hearing loss was caused by noise exposure during service. In a March 2017 buddy statement, the Veteran's neighbor, P.S., stated that she has known the Veteran for many years and during which she noticed he was hearing impaired. In a May 2017 buddy statement, the Veteran's childhood friend, G.W., stated that when the Veteran returned from Vietnam, the Veteran had a hard time hearing. In a May 2017 buddy statement, the Veteran's brother, C.G., stated that when the Veteran separated from the Army, the Veteran seemed to have problems with his hearing, causing C.G. to have to repeat himself and turn up the television. In a May 2017 buddy statement, the Veteran's sister stated that upon the Veteran's return from service, the Veteran's hearing had diminished. In a June 2017 buddy statement, the Veteran's spouse stated she has been married to the Veteran for 46 years. She noticed a difference in the Veteran's hearing when he returned from Vietnam, the Veteran had a hard time following conversations. The Veteran's spouse explained that this is an ongoing problem the Veteran has suffered from since his return from service. In an April 2017 medical opinion, Dr. J.S. diagnosed the Veteran with bilateral sensorineural hearing loss. The otolaryngologist opined, after reviewing the Veteran's medical history, to include his history of hearing loss during this time on active service and after obtaining a comprehensive audiometric evaluation, that the Veteran's prolonged exposure to sounds above 85dB led to irreversible hearing loss. Dr. J.S. ultimately concluded that the Veteran's bilateral hearing loss was at least as likely as not in part caused by his active service. Based on the foregoing, the Board finds that the April 2014 and April 2017 positive medial opinion, in conjunction with the Veteran's MOS as an infantryman, the Veteran's lay statements and the buddy statements, which all link the Veteran's current hearing loss to his military service, are highly probative and support a finding that the Veteran's current bilateral hearing loss is related to his military service. Thus, service connection for bilateral hearing loss is warranted. ORDER Entitlement to service connection for bilateral hearing loss is granted. ____________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs