Citation Nr: 1802319 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 15-37 864 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and A.H. ATTORNEY FOR THE BOARD M. Moore, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from August 1953 to June 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In December 2017, the Veteran presented sworn testimony during a Travel Board hearing in Waco, Texas, which was chaired by the undersigned. A transcript of the hearing has been associated with the Veteran's claims file. The issue of entitlement to service connection for tinnitus has been raised by the record in an October 2015 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). 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 currently diagnosed bilateral hearing loss is likely the result of his active service. CONCLUSION OF LAW The criteria for service connection are met for bilateral hearing loss. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012). Generally, the evidence 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, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (noting that nexus may be demonstrated by a showing of continuity of symptomatology where the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a)). For the purpose of applying the laws administered by the 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 (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 (2017). With regard to a present disability, audiometric results from an August 2013 VA examination show hearing acuity of 80dB to 95dB at all frequencies and Maryland CNC scores of 18 percent bilaterally. This meets the definition of hearing loss for VA purposes. 38 C.F.R. § 3.385 (2017). The first element of Shedden/Caluza is met. With regard to an in-service event, service treatment records are negative for any complaints of hearing loss. However, the Veteran testified at his December 2017 Board hearing that he trained in artillery without hearing protection while in service. As the undersigned finds his hearing testimony credible, in-service noise exposure can be conceded and the second element of Shedden/Caluza is also met. The remaining question is whether there is a medical nexus between the Veteran's in-service noise exposure and his current bilateral hearing loss. The Veteran was afforded a VA audiological examination in August 2013. The examiner concluded that the Veteran's bilateral hearing loss was not related to service because there were no significant changes in hearing sensitivity in service and the Veteran's hearing was within normal limits at separation. However, the only hearing sensitivity testing documented in service was whispered voice tests at entrance and separation. These are not adequate tests of subtle changes in hearing acuity. Additionally, he failed to address the lay statements from the Veteran and his son attesting to his long-standing hearing problems. This deficiencies weaken the probative value of the opinion. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). In response to the negative VA opinion, the Veteran submitted a February 2015 private audiogram noting that he had acoustic trauma from time spent in the military. Although the private audiologist does not provide a rationale for his opinion, it is consistent with the Veteran's credible testimony of decreased hearing since service and lack of post-service noise exposure. The Board notes that the hearing loss claim could be remanded for a new VA opinion that addresses these deficiencies. However, in light of the positive private opinion, complaints of continuous hearing loss since service, and limited probative value of the negative opinion, the Board finds that the evidence is, at minimum, in equipoise regarding the question of whether the Veteran's current bilateral hearing loss is related to his military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). The benefit-of-the-doubt will be conferred in the Veteran's favor and remand is not necessary. The claim for service connection for bilateral hearing loss is granted. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for bilateral hearing loss is granted ____________________________________________ A. S. CARACCIOLO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs