Citation Nr: 1802709 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 15-05 983 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from February 1957 to February 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision by the Chicago, Illinois, Regional Office (RO) of the Department of Veterans Affairs (VA). In an October 2015 decision the Board granted entitlement to service connection for tinnitus and remanded the bilateral hearing loss issue for additional development. The issue was remanded again in May 2016. 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 Resolving all doubt in his favor, the Veteran's diagnosed bilateral hearing loss disability is etiologically related to service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (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. § 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). A hearing loss disability for VA compensation purposes is defined by regulation and impaired hearing is considered to be a disability when the auditory threshold 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 500, 1000, 2000, 3000, or 4000 Hertz 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 (2017). Once the requirements of 38 C.F.R. § 3.385 have been met and a present hearing disability under applicable VA laws and regulations is found, a determination must be made as to whether the current hearing disorder is related to service. Even if a veteran does not have a hearing loss disability for VA compensation purposes recorded during service, service connection may still be established if post-service evidence satisfies the criteria of 38 C.F.R. § 3.385 and the evidence links the present hearing loss disability to service. The threshold for normal hearing is 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155 (1993). Certain chronic diseases, including organic diseases of the nervous system, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113 (2012); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2017). Sensorineural hearing loss and tinnitus are considered organic diseases of the nervous system. See Fountain v. McDonald, 27 Vet. App. 258 (2015). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). As a result, service connection via the demonstration of continuity of symptomatology is applicable in the present case. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102 (2017). The Veteran contends that he has bilateral hearing loss as a result of aircraft and airframe work noise exposure during active service. Service treatment records show whispered and spoken voice testing upon separation examination in January 1961 was 15/15, bilaterally. Records show he received training and served as an aviation metalsmith. On VA authorized audiological evaluation in December 2014, pure tone thresholds, in decibels, were as follows: in the right ear: 20 (500 Hz.), 35 (1000 Hz.), 40 (2000 Hz.), 55 (3000 Hz.), and 65 (4000 Hz.); and in his left ear: 25 (500 Hz.), 35 (1000 Hz.), 45 (2000 Hz.), 505 (3000 Hz.), and 55 (4000 Hz.). Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 96 percent in the left ear. The diagnoses included sensorineural hearing loss in the right and left ears. The examiner noted that only whispered voice testing was performed at enlistment and separation and that such tests were highly subjective and insensitive to high frequency hearing loss. It was further noted that the Veteran reported he first noticed hearing problems in the last four or five years, nearly 50 years after his separation from service, but that he reported he had served as an aviation structural mechanic and had been exposed regularly to propeller plane engines without hearing protection. He denied occupational or recreational noise exposure after service and reported that he had worked as a barber. He also denied any history of outer/middle ear pathology, dizziness/vertigo, and familial history. A report from the Institute of Medicine, titled "Noise and Military Service: Implications for Hearing Loss and Tinnitus" (2006), was cited as finding that there was not sufficient evidence to conclude that permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure. The examiner stated that although the definitive studies to address this issue had not been performed, based on the anatomical and physiological data available on the recovery process following noise exposure, it was unlikely that such delayed effects occur. In its October 2015 decision the Board found credible reports from the Veteran and his spouse that tinnitus developed in service or proximate thereto, and that the reports were consistent with the era and circumstances of his service without contradiction by any other evidence. The Board also accepted the Veteran's testimony with respect to noticing a change of hearing acuity in service. Such necessitated a remand for a medical opinion to determine the likelihood that any current hearing loss disability was related to the Veteran's active service. Upon remand, the examiner was directed to assume as true the Veteran's account of onset of perceivable diminished bilateral hearing acuity during military service. In its May 2016 remand the Board found a December 2015 medical opinion addendum to be not responsive to the remand directives. An additional opinion was requested with the examiner to be advised that the Veteran was service-connected for tinnitus based upon in-service noise exposure and that it should be assumed that his account of a perceivable diminishment in hearing acuity while in service was true. A December 2016 VA medical opinion based upon a review of the record, in essence, acknowledged the Veteran's acoustic trauma in service, but stated that not all individuals who experienced acoustic trauma subsequently experienced hearing loss. There was no indication that the examiner assumed that the Veteran's account of a perceivable diminishment in hearing acuity while in service was true. The examiner also stated that it was unknown if there was any family history of hearing loss or head or ear trauma or if the Veteran had any medical conditions that may cause hearing loss, but did not acknowledge the information provided in the December 2014 VA examination report. Medical studies were cited in support of the opinion that given the amount of time between separation and complaint with the lack of subsequent documentation and unknown aspects of family history or medical issues an opinion could not be offered without resorting to speculation. The evidence clearly demonstrates current bilateral hearing loss for VA purposes. There are also credible statements from the Veteran as to a lack of occupational or recreational noise exposure after service. He also denied any familial history of hearing problems or associated medical disorders at his December 2014 VA examination. There is no contradictory medical evidence as to the conceded fact that the Veteran had an onset of perceivable diminished bilateral hearing acuity during military service. The Board further acknowledges that the Veteran is competent to report observable symptoms, such as hearing problems. None of the VA examinations of record adequately addressed this history. In light of the fact that reports of his perceivable diminishment in hearing acuity while in service have been previously found to be credible and consistent with the circumstances of his service and that the evidence shows a subsequently established hearing loss for VA compensation purposes without intervening injury or disease, the Board finds that entitlement to service connection for bilateral hearing loss is warranted. ORDER Entitlement to service connection for bilateral hearing loss is granted. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs