Citation Nr: 1800867	
Decision Date: 01/08/18    Archive Date: 01/19/18

DOCKET NO.  13-28 726	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	John P. Dorrity, Accredited Agent


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

A. Odya-Weis, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 1964 to August 1966.

This matter is on appeal from an October 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey.

The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in August 2016.  A transcript of the hearing is associated with the record.

Since the agency of original jurisdiction (AOJ) last considered the appeal, additional VA-generated evidence has been added to the record.  However, there is no need for the RO to consider this evidence in view of the Board's favorable determination regarding this issue in the decision below.  See 38 U.S.C. § 7105(e) (2012).  

The Board notes that the Veteran has filed a notice of disagreement (NOD) at the RO concerning claims for increased evaluations for traumatic brain injury (TBI) and headaches as shown in the electronic claims file (VBMS).  Such appeal is contained in the VACOLS appeals tracking system as an active appeal at the RO.  While the Board is cognizant of the United States Court of Appeals for Veterans Claims (Court) decision in Manlincon v. West, 12 Vet. App. 238 (1999), the Board notes that in this case, unlike in Manlincon, the RO has fully acknowledged the NOD and is currently in the process of addressing the appeal.  Action by the Board at this time may serve to delay the RO's action on that appeal.  

As such, no action will be taken by the Board at this time, and the appeal issues presently before the RO will be the subject of a later Board decision, if ultimately necessary.




FINDING OF FACT

The Veteran's bilateral hearing loss is related to acoustic trauma incurred during active service.


CONCLUSION OF LAW

The criteria for service connection for bilateral hearing loss have been met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.385 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran contends that he has bilateral hearing loss related to loud noise exposure during his active military service. 

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017).  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) (2017).

To establish service connection, the evidence generally must show: (1) the existence of a present disability, (2) 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, 1167 (Fed. Cir. 2004). 

The Board also notes that certain chronic diseases are subject to a grant of service connection on a presumptive basis when present to a compensable degree within the first post-service year.  38 C.F.R. §§ 3.307, 3.309(a).  Organic diseases of the nervous system, including sensorineural hearing loss, are considered by VA to be chronic diseases.  38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013).

Bilateral sensorineural hearing loss was demonstrated in a January 2016 VA audiological evaluation.  38 C.F.R. § 3.385.  Therefore, the Board finds the first element of the service connection claim has been satisfied.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994).

Next, the evidence of record supports a finding that the Veteran sustained an in-service injury from acoustic trauma.  The Veteran testified that he was exposed to loud noise due to his duties as a jet mechanic in the United States Navy and that he was unable to consistently use hearing protection in order to properly work on the aircraft.  His DD Form 214 notes that his primary occupational specialty was a jet and aircraft servicer.  Based on the service records, the Veteran's credible statements, and acknowledging that VA has already conceded noise exposure due to the Veteran's military duties, the Board concludes that the Veteran sustained an injury during service, satisfying the second element of the service connection claim.  Id.

With regard to a nexus between the claimed in-service disease or injury and the current disabilities, the Board finds an August 2010 private opinion finding the Veteran's bilateral hearing loss is likely due to military service to be probative evidence in support of the claim.  The opinion noted review of the Veteran's pertinent medical history and is consistent with other evidence of record, notably, the Veteran's statements that his first noticed hearing loss in service but did not treat the issue because he was told it would go away.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay testimony is competent to establish the presence of observable symptomatology).  Further, the Board notes that the September 2011 and September 2013 VA examinations are not inconsistent as they offered no nexus opinion.  As the probative, competent evidence is at least in equipoise as to whether the Veteran's bilateral hearing loss was incurred in active service, service connection is warranted.  See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

ORDER

Service connection for bilateral hearing loss is granted.



JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs