Citation Nr: 1757761	
Decision Date: 12/13/17    Archive Date: 12/28/17

DOCKET NO.  11-07 009	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boise, Idaho


THE ISSUE

Entitlement to service connection for a bilateral hearing loss disability.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

J. Whitley, Associate Counsel







INTRODUCTION

The Veteran served on active duty from July 1975 to July 1978.

This matter is before the Board of Veterans' Appeals (Board) on appeal of an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho.

The Veteran originally requested a hearing before the Board.  In March 2014, the Veteran, through his service representative, cancelled his request for a hearing in writing.  38 C.F.R. 20.704(e) (2017).

In May 2014, September 2016 and June 2017, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for additional development.


FINDINGS OF FACT

1. The Veteran currently has bilateral sensorineural hearing loss to an extent recognized as a disability for VA compensation purposes.

 2. The Veteran was exposed to loud noise (acoustic trauma) while in service.

 3. The Veteran experienced "continuous" symptoms of bilateral hearing loss since service separation.


CONCLUSION OF LAW

Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral sensorineural hearing loss have been met. 38 U.S.C. §§ 1112 , 1131, 1154, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

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). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 

Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).

The Veteran is currently diagnosed with bilateral sensorineural hearing loss (SNHL). SNHL is considered an organic disease of the nervous system, which is listed as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions of 38 C.F.R. § 3.303(b) for "chronic" in-service symptoms and "continuous" post service symptoms apply.  Walker v. Shinseki, 
708 F.3d 1331 (Fed. Cir. 2013). 

Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service.  For a chronic disease such as hearing loss, service connection may be established under 38 C.F.R. § 3.303(b) if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury are shown at any later date, however remote, unless clearly attributable to intercurrent causes.  For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  Continuity of symptomatology after service is required where a condition noted during service is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned.  38 C.F.R. § 3.303(b).
The service connection provisions based on "chronic" in-service symptoms and "continuity of symptomatology" after service under 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a).  See Walker, 708 F.3d 1331 (holding that the "chronic" in service and "continuous" post-service symptom presumptive provisions of 38 C.F.R. § 3.303(b) only apply to "chronic" diseases at 3.309(a)).

Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as organic diseases of the nervous system, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. §§ 3.307, 3.309(a).  While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. 

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, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). 

The Veteran asserts that the currently diagnosed hearing loss is due to in-service noise exposure, that is, exposure to loud noise from service as a power generator and wheel vehicle mechanic.  The Board in no way questions such exposure occurred.  VA has already established service-connection for tinnitus based on the Veteran's in-service noise exposure.  Additionally, VA examinations dating from 2010 to 2017 have consistently shown that a bilateral hearing loss disability exists for VA purposes under the provisions of 38 C.F.R. § 3.385.  

Thus, the key question at issue is whether the Veteran's current hearing loss disability had its onset in, or is otherwise related to his period of service, to specifically include his in-service noise exposure from working around power generators.

Audiometric testing upon entrance into service was as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
10
15
/
35
LEFT
15
0
5
/
15

The Board initially notes that the Veteran is presumed to have entered service without a pre-existing hearing loss disability, despite exhibiting an auditory threshold of 35dB at 4000Hz for the right ear on entrance.  Indeed, audiometric testing performed at the time of entrance in July 1975 revealed no pre-existing hearing loss disability of either ear for VA purposes.  Under McKinney v. McDonald, 28 Vet. App. 15 (2016), where the degree of hearing loss noted on the entrance examination does not meet VA's definition of a "disability" for hearing loss under 38 C.F.R. § 3.385, the veteran is entitled to the presumption of soundness.  Thus, the Veteran entered service without a hearing loss disability.

Consistent with a finding of acoustic trauma in service, the service treatment records (STRs) reflect that the Veteran reported experiencing hearing loss upon separation from service on his July 11, 1978 Report of Medical History.  In addition, audiometric testing upon separation revealed the following results:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
15
15
/
35
LEFT
10
10
15
/
30

A VA examiner pertinently reviewed these values in November 2016 and July 2017 and determined that for both the left and right ear, there was a "permanent positive threshold shift (worse than reference threshold) greater than normal measurement variability."   An April 2012 VA examiner stated that "the significance of the degradation that was noted tells us that [the Veteran] had some damage to his hearing at 4k Hz in both ears."  

The Veteran has provided credible statements as well as lay histories provided to medical personnel that his hearing loss symptoms have been continuous since service.  The Board recognizes that after service, the Veteran was exposed to occupational noise exposure; however, the Veteran has consistently indicated he wore hearing protection in performance of his post-service work duties.  The Board finds no reason to call into question the Veteran's recollection of deteriorating hearing during service, and that he has experienced hearing loss symptoms from service to the present day.   His assertions are supported by his service treatment records, which document an in-service complaint of hearing loss at separation, a "permanent positive threshold shift (worse than reference threshold) greater than normal measurement variability," and some degree of hearing loss in both ears (right ear: 20 dB at 500Hz, 35 dB 4000Hz; left ear: 30 dB at 4000 Hz) at separation.  Hensley v. Brown, 5 Vet. App. 155 (1993).

The Board recognizes that there are negative nexus opinions of record, but several have already been deemed inadequate by the Board in prior remands.  The most recent negative nexus opinion obtained in July 2017 focused on the fact that the Veteran's hearing loss was "normal" for VA purposes at separation, but did not adequately explain why the in-service threshold shift-deemed by that same examiner to be a permanent positive threshold shift greater than normal measurement variability in both ears-was not indicative of in-service onset of a chronic disability.   

The Board accordingly finds that the evidence is, at the very least, in relative equipoise on the question of whether the Veteran had continuous symptoms of bilateral hearing loss from service separation in July 1978 to the present day.  The Board accordingly resolves all reasonable doubt in the Veteran's favor and finds that the Veteran was exposed to loud noise (acoustic trauma) while in service and experienced "continuous" symptoms of bilateral hearing loss since service separation in July 1978 to meet the criteria for service connection for bilateral hearing loss under 38 C.F.R. § 3.303(b) based on "continuous" post-service symptoms.  38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102.  The benefit sought on appeal is granted.


ORDER

Service connection for a bilateral hearing loss disability is granted.




____________________________________________
V. Chiappetta
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs