Citation Nr: 1753932 Decision Date: 11/27/17 Archive Date: 12/07/17 DOCKET NO. 14-10 961 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for right ear hearing loss. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD LM Stallings, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1968 to June 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A videoconference hearing was held before the undersigned in April 2017. A transcript of the hearing is of record. FINDING OF FACT Right ear hearing loss is etiologically related to in-service noise exposure. CONCLUSION OF LAW The criteria for direct service connection for right ear hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Any error in VA's duties to provide notice or assistance in this case is harmless, given the fully favorable determination for the claim on appeal. Service Connection To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including organic diseases of the nervous system, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Hearing loss, as an organic disease of the nervous system, is subject to presumptive service connection where there is evidence of acoustic trauma and nerve damage. Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). The Veteran asserts that he has right ear hearing loss as a result of in-service exposure to hazardous noise, and has asserted that he has had hearing loss since service. Impaired hearing will be considered a disability for VA purposes when the auditory thresholds in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) are 40 decibels or more; or when the thresholds for at least three of these frequencies 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. A July 2010 VA audiology examination reflects hearing thresholds that meet the criteria of 38 C.F.R. § 3.385. Based on this evidence, the Board concludes the Veteran has a right ear hearing loss disability for VA purposes. The question for the Board is whether the Veteran's right ear hearing loss either began during active service, or is etiologically related to an in-service disease or injury. The Board finds that competent, credible, and probative evidence establishes that the Veteran's right ear hearing loss is etiologically related to the Veteran's active service. The July 2010 VA examination report reflects that the Veteran reported that he had noise exposure in the military during his time in Vietnam as a helicopter mechanic and door gunner. He noted no hearing protection was used. The Veteran also reported a rocket attack in 1969 in Vietnam, after which he became aware of hearing loss. The Veteran reported post-service occupational noise exposure as a choke setter and timber cutter for around 30 years after service, always with hearing protection. The Veteran's DD Form 214 reflects that the Veteran's military occupational specialty was an aircraft maintenance specialist. The Veteran's DD Form 214 and service personnel records reflect that the Veteran had service in Vietnam from February 1969 to February 1970 and that he was involved in Vietnam Counter Offensive campaigns and the Tet 69 Counter Offensive campaign. The Board finds that the Veteran's reports of exposure to in-service hazardous noise to be consistent with the known circumstances of the Veteran's service. Therefore, the Board finds the Veteran's statements regarding an in-service injury, specifically exposure to hazardous noise, to be competent and credible. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (holding that laypersons are competent to report lay observable symptoms and information of which they have personal knowledge). The Veteran has asserted that he has had continuous symptoms of right ear hearing loss since service. At the April 2017 Board hearing, the Veteran testified that he has required hearing aids for almost 15 years and that when he got the hearing aids he had not heard things like frogs or crickets for approximately 20 years before getting the hearing aids. The Board finds the Veteran competent and credible with regard to his claim of experiencing symptoms of right ear hearing loss and continuity of symptoms since service. There is evidence that the Veteran had noise exposure in service and his assertion that right ear hearing loss began during service is consistent with circumstances of service. Moreover, the October 2017 VA examiner opined that it is at least as likely as not that the Veteran's right ear hearing loss is caused by or a result of his military service, to include the high probability of noise exposure he incurred in service as a helicopter mechanic and door gunner, as well as the rocket explosion in 1969. The Board acknowledges that the July 2010 VA examiner opined that the Veteran's right ear hearing loss was not at least as likely as not caused by or a result of an event in military service. In the rationale, the examiner stated that the Veteran's service treatment records showed hearing within normal limits at both entrance and exit from service and therefore, any right ear hearing loss is likely due to his occupational noise exposure and not service. However, the VA examiner's rationale was inadequate. The VA examiner relied on the lack of hearing loss before leaving service and did not adequately address the Veteran's noise exposure during service and the circumstances of post-service noise exposure with regards to etiology, nor did he discuss the possibility of delayed onset hearing loss. When regulatory requirements for a disability are not shown at separation from service, service connection may still be established through probative evidence that the current disability is causally related to service. See Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993); see also 38 C.F.R. § 3.303(d). In sum, the Veteran has been diagnosed with right ear hearing loss and was exposed to hazardous noise in service. The Board finds the Veteran's statements that he has been experiencing right ear hearing loss since service to be competent and credible. Therefore, they have significant probative value. Further, the Board finds the October 2017 VA opinion finding that the Veteran's right ear hearing loss is related to service to be more probative than the July 2010 VA opinion. Resolving any reasonable doubt in favor of the Veteran, the Board finds that service connection for right ear hearing loss is warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Service connection for right ear hearing loss is granted. ____________________________________________ M. Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs