Citation Nr: 1756653	
Decision Date: 12/07/17    Archive Date: 12/15/17

DOCKET NO.  11-23 586	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to service connection for bilateral hearing loss.  


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

J.A. Gelber, Associate Counsel


INTRODUCTION

The Veteran served on active duty from November 1974 to October 1977.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).  

The Veteran requested a Board hearing in his Form 9 substantive appeal.  The RO scheduled a hearing and sent notice to the Veteran in February 2013.  However, he did not appear for the hearing, and the hearing request was effectively withdrawn.


FINDING OF FACT

The competent and probative evidence is at least in equipoise as to whether the Veteran's bilateral hearing loss had its onset in or is otherwise related to his period of active service.  


CONCLUSION OF LAW

The criteria for entitlement to service connection for bilateral hearing loss have been met.  38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

As the issue decided herein is being granted in full, any deficiency as to VA's duties to notify and assist would be harmless error and will not be discussed.


II.  Service Connection 

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 

As a general matter, establishing service connection requires competent evidence of (1) the existence of 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 present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303.

In a claim of service connection for impaired hearing, demonstration of the first Shedden element-i.e., the existence of a current disability-is subject to the additional requirements of 38 C.F.R. § 3.385, which provides that service connection for impaired hearing shall not be established until the hearing loss meets pure tone and/or speech recognition criteria.  Under this regulation, hearing status will be considered a disability for the purposes of service connection when the auditory thresholds in any of the frequencies of 500, 1000, 2000, 3000, and 
4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; and/or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  The United States Court of Appeals for Veterans Claims (Court) has indicated that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

The Veteran is competent to report symptoms and experiences observable by his senses.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a).

In relevant part, 38 U.S.C. § 1154(a) (2012) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990).  

After review of the record, the Board finds that the criteria for service connection for bilateral hearing loss have been met.  

On the authorized audiological evaluation in January 2010, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
40
55
60
70
80
LEFT
45
60
65
75
75

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 90 percent in the left ear.  01/26/2010, VA Exam.  Accordingly, the Board finds competent evidence of a current disability per § 3.385.  

The Board finds that the Veteran was exposed to acoustic trauma in service as consistent with his military occupational specialty (MOS) as an aviation mechanic and working on the flight line.  See 08/10/2016, Certificate of Discharge; 11/30/2017, Correspondence.  A July 1975 service treatment note reflects the Veteran's request to have his ears checked because he lost his ear plugs and his ears felt "funny."  02/28/2013, STR-Medical, p. 1.  

In November 2017, after the Board's request for an opinion by a specialist in audiology, a VA audiologist opined that it is as likely as not that the Veteran's bilateral hearing loss is related to his time in military service.  In support of her opinion, the audiologist cited to the Veteran's MOS as an aviation mechanic having a high probability of hazardous noise exposure, the Veteran's report of exposure to excessive noise from aircraft and engines while working on the flight line, and the July 1975 service treatment note reflecting the Veteran's report of his ears feeling "funny," which the audiologist stated indicates noise trauma.  11/30/2017, Correspondence.  Additionally, in January 2017, a VA examiner noted a significant change in hearing threshold during service bilaterally.  01/17/2017, C&P Exam.  Accordingly, the Board finds that the competent and probative evidence is at least in equipoise as to whether the Veteran's current bilateral hearing loss had its onset in or is otherwise related to his period of active service.  

The Board acknowledges the January 2010 and January 2017 VA audiologist opinions that it is less likely than not that the Veteran's bilateral hearing loss had its onset in or is otherwise related to his period of active service; however, the Board assigns those opinions little probative weight, as neither examiner discussed a November 1976 audiometric examination or the July 1975 in-service treatment record reflecting the Veteran's complaint that his ears felt "funny."  


ORDER

Service connection for bilateral hearing loss is granted.  




____________________________________________
Paul Sorisio
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs