Citation Nr: 1757097	
Decision Date: 12/11/17    Archive Date: 12/20/17

DOCKET NO.  14-32 136	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

M. A. Macek, Associate Counsel


INTRODUCTION

The Veteran served on active duty from October 1959 to April 1978 in the United States Air Force.

The matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 decision of the Denver, Colorado, Regional Office (RO).

The Veteran testified via video-conference before the undersigned VLJ in July 2017. A transcript of the hearing has been associated with the claims file.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (West 2012).


FINDING OF FACT

Resolving reasonable doubt in the Veteran's favor, he was exposed to acoustic trauma as part of his military occupational specialty (MOS) and his current bilateral hearing loss is etiologically related to such service.


CONCLUSION OF LAW

The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1101, 1110 (West 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Service Connection

A. Direct 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, 1131; 38 C.F.R. § 3.303 (a).

B. Presumptive Service Connection

Presumptive service connection may be granted for "chronic diseases" if the disease manifests to a compensable degree within service or within the presumptive period of one year after separation. 38 C.F.R. § 3.307 (a)(3). Sensorineural hearing loss is categorized as a chronic "organic disease of the nervous system." 38 U.S.C. § 1101; 38 C.F.R. § 3.309 (a). If the chronic disease manifested in service or within the presumptive period, then service connection will be established for subsequent manifestations of the same chronic disease at any date after service, no matter how remote, without having to show a causal relationship or medical nexus, unless the later manifestations are clearly due to causes unrelated to service ("intercurrent causes"). 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012) (holding that § 3.303(b) only applies to the chronic diseases listed in § 3.309(a)).

Bilateral Hearing Loss

Hearing loss for VA purposes requires auditory thresholds in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the 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.

The Court has held that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss, even if not sufficient hearing loss to be considered an actual ratable disability according to § 3.385. Hensley v. Brown, 5 Vet. App. 155, 159 (1993).

The Veteran contends that a current bilateral hearing loss disability is the result of acoustic trauma he experienced during active military service. See July 2017 Hearing Transcript. He testified that as part of his MOS duties as an electrical power production superintendent, he worked with diesel engines, gas turbines, jet engines, and bomb explosions. He confirmed that during his 29 years of service, he experienced consistent noise exposure. He also reported one incident where a 500 pound bomb exploded on base due to a grass fire which detonated munitions and damaged several buildings. He stated that he did not have hearing protection while the explosions went off. The Veteran acknowledged that he briefly shot a firearm while hunting after separation; however, he stated that he wore ear protection during his hunting trips. He added that most of his hunting was done by bow and arrow, which produces no acoustic trauma.

The VA has conceded that the Veteran was exposed to hazardous noise levels during service and that his MOS has a moderate to high probability of noise exposure, which was confirmed by the Veteran's contentions. The question for the Board is whether the Veteran's current diagnosis of bilateral sensorineural hearing loss is etiologically related to service. 

Resolving benefit of doubt in the Veteran's favor, the Board finds that competent, credible, and probative evidence weighs in favor of finding that the Veteran's bilateral hearing loss is etiologically related to his active service.


With respect to element (1), a current disability, the Veteran has a current diagnosis of bilateral sensorineural hearing loss.

The Veteran was afforded an audiology VA examination in September 2012. The Veteran's pure tone thresholds, in decibels, were as follows:






HERTZ



500
1000
2000
3000
4000
RIGHT
20
25
25
40
50
LEFT
25
40
45
45
50

Speech audiometry revealed speech recognition ability at 94 percent in the right ear. The average decibel loss was 35 in the right ear.

Speech audiometry revealed speech recognition ability at 94 percent in the left ear. The average decibel loss was 45 in the left ear.

These results indicate that the Veteran has a bilateral hearing loss disability due to impaired hearing as per §3.385.

With respect to element (2), in-service incurrence of a disease or injury, the Veteran reported that he has suffered acoustic trauma in service as part of his MOS where he was exposed to diesel engines, gas turbines, jet engines, and bomb explosions. 

The Board notes that the Veteran's DD-214 lists his MOS. The Veteran reported that his MOS was an electrical power production superintendent. The record lacks any complaints or service records indicating treatment for a hearing condition in-service or within one year of separation; however, the Board gives great probative weight to the Veteran's testimony stating that he was exposed to acoustic trauma as a result of working with of his MOS. Additionally, the September 2012 VA examiner, an audiologist, believed that it was reasonable to assume that the Veteran was exposed to hazardous noise levels during service and that his MOS has a moderate to high probability of noise exposure. Giving the Veteran the benefit of doubt, the Board finds that he was exposed to acoustic trauma in-service.

Therefore, element (2), in-service incurrence of the claimed in-service injury, bilateral hearing loss, has been met.

With respect to element (3), a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability, resolving reasonable doubt in the Veteran's favor, the competent, credible, and probative evidence of record weighs in favor of finding that the Veteran's bilateral hearing loss is etiologically related to service.

In the September 2012 VA audiology examination, the examining audiologist opined that the Veteran's bilateral hearing loss is less likely than not related to military noise exposure. Additionally, she noted that there has been no indication a bilateral hearing loss disability in the Veteran's service treatment records or within one year of separation. The examiner noted that the Veteran's hazardous noise exposure while in-service was conceded and that his subjective report of hearing loss while in-service were taken into consideration in rendering the etiology opinion.

The Board acknowledges that the Veteran was exposed to acoustic trauma as the result of his exposure to his MOS, but that there is no indication of complaints of hearing loss in service and the Veteran's hearing loss did not manifest to a compensable degree within the presumptive period. The Veteran had routine VA examinations performed throughout his time in the military and at his separation from active duty which revealed no hearing loss disability as per 38 C.F.R. § 3.385 (2017). 

However, the absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). To establish service connection for hearing loss, the Veteran is not obliged to show that his hearing loss was present during active military service. However, if there is insufficient evidence to establish that a claimed chronic disability was present during service, the evidence must establish a nexus between his current disability and his in-service exposure to loud noise. Godfrey v. Derwinski, 2 Vet. App. 352 (1992).

The Veteran submitted additional private audiology treatment records supporting his claim. In a March 2014 treatment note from Peak - Ear, Nose, Throat, and Voice Center, Dr. JC opined that "[g]iven his 20+ years of service in the military and chronic exposure to loud noise machinery, artillery, and jet engines, his hearing loss is most likely caused by noise induced trauma which can present years after loud noise insults are removed from the patient's environment." The examiner added that the Veteran was afforded an MRI which was unremarkable and cleared him of any inner ear pathology that may have caused hearing loss.

The Board finds that there is sufficient evidence to establish that the Veteran's current bilateral hearing loss disability is related to his service. The Board finds that the Veteran's statements regarding the quality and duration of his hearing loss are highly credible and have remained consistent throughout the pendency of the claim. 

Furthermore, the Board places great probative weight on the March 2014 private medical opinion which linked the Veteran's current hearing loss to his service. Expert testimony may be received from a suitably qualified expert when (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods and (3) the expert witness has applied the principles and methods reliably to the facts of the case. See Fed.R.Evid. 702, Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Dr. JC provided the Veteran with an audiology examination, which included a past medical history of the Veteran's hearing loss disability. The examiner ruled-out any other ear pathology that may have contributed to the Veteran's hearing loss. As such, the Board finds that the medical opinion is adequate and sufficient to establish, giving the Veteran the benefit of doubt, that it is at least as likely as not that the Veteran's current bilateral hearing loss disability is related to his service.

Resolving reasonable doubt in the Veteran's favor, the preponderance of the competent, credible, and probative evidence weighs in favor of finding that element (3), a causal relationship, i.e., a nexus, and the claimed in-service disease or injury, bilateral hearing loss, has been met; therefore, service connection for bilateral hearing loss is warranted.


ORDER

Entitlement to service connection for bilateral hearing loss is granted.



____________________________________________
M. TENNER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs