Citation Nr: 1800293	
Decision Date: 01/04/18    Archive Date: 01/19/18

DOCKET NO.  16-01 503	)	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

Veteran represented by:	Colorado Division of Veterans Affairs


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

K. Forde, Associate Counsel 


INTRODUCTION

The Veteran served on active duty in the United States Army from December 1961 to December 1963.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado.

In November 2017, the Veteran testified before the undersigned Veterans Law Judge.  A transcript of the hearing has been associated with the record.    

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) (2012).


FINDING OF FACT

The Veteran's bilateral hearing loss is related to in-service acoustic trauma. 


CONCLUSION OF LAW

The criteria for entitlement to service connection for bilateral hearing loss are met.  38 U.S.C. §§ 1131, 1154(a), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran asserts that his bilateral hearing loss is the result of his exposure to acoustic trauma during service as part of an artillery unit in Germany.  See November 2017 hearing transcript at 4; January 2016 substantive appeal (VA Form 9).  
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. § 1131; 38 C.F.R.
§ 3.303(a).  To establish entitlement to service-connected compensation benefits, a Veteran must show (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).  

For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including sensorineural hearing loss, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service.  38 U.S.C. 
§§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309.  In the instant case, the presumption does not apply because the Veteran was not diagnosed with sensorineural hearing loss within one year of service.

Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes).   Hensley v. Brown, 5 Vet. App. 155, 159 (1993).  

For 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 above frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  See Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007) (upholding the validity of 38 C.F.R. § 3.385 to define hearing loss for VA purposes).  The threshold for normal hearing is from 0 to 20 dB; higher threshold levels indicate some degree of hearing loss.  Hensley, 5 Vet. App. at 157.

The July 2014 VA examination report establishes bilateral hearing loss pursuant to 38 C.F.R. § 3.385.  Thus, the first element of service connection is established.

Regarding the second element of service connection, the Veteran's service treatment records are silent for complaints related to hearing loss.  However, he has reported in-service acoustic trauma secondary to artillery noise without the benefit of hearing protection.  His DD Form 214 reflects a military occupational specialty (MOS) of field basic artillery.  The Veteran's reports of military noise exposure are consistent with the circumstances of his service.  38 U.S.C. § 1154(a).  Therefore, an in-service injury in the form of acoustic trauma is shown.  

Thus, this appeal turns on whether there is a nexus between the Veteran's hearing loss and service.  The Veteran is competent to report hearing problems during service and since that time.  Moreover, the Board finds that his reports of noise exposure during service and hearing problems since service are credible, as are the reports of his spouse that he had hearing problems continuously since service.  See also Jandreau v. Nicholson, 492 F.3d 1372 (2007).  Additionally, the Veteran is already service-connected for tinnitus based on credible reports of acoustic trauma during service.  

Further, an August 2014 letter from the Veteran's private audiologist opines that his bilateral hearing loss is related to his in-service noise exposures, noting the Veteran's duties and associated severe noise exposures led to damage to the ear that ultimately resulted in permanent hearing loss.  The audiologist emphasized that there may be no perceptual change in hearing immediately following exposures, and that it may take years for someone in the Veteran's position to perceive any change in hearing.  The Board finds that this opinion tends to demonstrate that there is a relationship between the noise exposure during service and the current hearing loss.  The audiologist provided understandable and rational bases for the opinion, which relied on an accurate history.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008).  Thus, a nexus to service is established.  The Board acknowledges that a VA audiologist, who examined the Veteran in July 2014, ultimately reached a conclusion unfavorable to the Veteran.  However, the VA examiner's medical opinion mischaracterized the findings of the Institute of Medicine in support of her opinion.  Thus, the Board finds this opinion is of no probative value.  Id. 

In sum, the most probative evidence of record reflects that the Veteran has bilateral hearing loss and was exposed to acoustic trauma in service, and that current bilateral hearing loss is related to that acoustic trauma.  Resolving all reasonable doubt in the Veteran's favor, the Board concludes that the criteria for service connection for bilateral hearing loss are met and service connection is granted.  


ORDER

Service connection for bilateral hearing loss is granted. 



____________________________________________
S. BUSH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs