Citation Nr: 1804026 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 14-23 184 ) 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 Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL The Veteran and his Wife ATTORNEY FOR THE BOARD Z. Maskatia, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1973 to April 1997. This matter comes before the Board of Veterans Appeals (Board) on appeal from a March 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. A travel hearing was held by the undersigned Veterans Law Judge in August 2017. A transcript of this hearing is of record. The Board notes that the Veteran's claim is no longer characterized as a claim to reopen. The Veteran's claim was originally denied in a March 2012 rating decision. However, the Board finds that this decision did not become final, as new evidence was received within a year of that decision. See Buie v. Shinseki, 24 Vet. App. 242 (2011). FINDING OF FACT The Veteran's bilateral hearing loss is related to service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. § 5107(b) (2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017). The full award of benefits sought on appeal is being granted at this time. Consequently, any further discussion respecting the VCAA is not necessary. Service Connection The Veteran is seeking entitlement to service connection for bilateral hearing loss and tinnitus. During his August 2017 hearing, the Veteran stated that he utilizes hearing aids because he has a hard time understanding people. Additionally, the Veteran's wife stated that his hearing loss has progressed to the point where she can hear his television while up two flights of stairs. 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 (2014). 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). Certain chronic diseases, including sensorineural hearing loss, 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 (2014); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2017). Moreover, for such chronic diseases, an alternative method of establishing the second and third Shedden/Caluza 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); See 38 C.F.R. § 3.303(b) (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2014). In cases where a hearing loss disability is claimed, 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 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. 38 C.F.R. § 3.385 (2017). 38 C.F.R § 3.385 does not preclude service connection for a current hearing loss disability where hearing was within normal limits on audiometric testing at separation from service. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Rather, when audiometric test results at a veteran's separation from service do not meet the requirements of 38 C.F.R. § 3.385, a veteran may nevertheless establish service connection for current hearing disability by submitting medical evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). Where the requirements for hearing loss disability pursuant to 38 C.F.R. § 3.385 are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post-service test results meeting the criteria of 38 C.F.R. § 3.385. Hensley, 5 Vet. App at 155. If the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflect an upward shift in tested thresholds while in service, though still not meeting the requirements for 'disability' under 38 C.F.R. § 3.385, and (b) post service audiometric testing produces findings which meet the requirements of 38 C.F.R. § 3.385; then the rating authorities must consider whether there is a medically sound basis to attribute the post service findings to the injury in service, or whether these findings are more properly attributable to intervening causes. Id. at 159. Based on the evidence of record, the Board determines that service connection is warranted for bilateral hearing loss. According to statements of record, to include the Veteran's DD-214, a May 2012 statement, his August 2013 notice of disagreement, and his August 2017 hearing testimony, he was an infantryman for twenty-four years, with heavy exposure to noise from tank fire. The Veteran stated that he and his comrades were expected to remain in his company's tanks so that the tanks remained occupied. He also testified that he did not report his symptoms due to concern about not being promoted. Further, the Veteran, in his May 2011 VA examination, denied occupational and recreational hazardous noise exposure during service. Thus, the Board finds that the Veteran was exposed to acoustic trauma during his active service. Moreover, there appears to the Board to be a perceptible tonal threshold shift from the time the Veteran entered service to the time he separated. Specifically, his service treatment records reflect that he underwent audiological evaluations on numerous occasions. He received audiology examinations in February 1978, towards the beginning of reserve service, and further audiology examinations in May 1987, September 1993, and in November 1996, near the end of active service. The Veteran's November 1996 examination indicated a slight, but significant shift at 4000 Hz in his right ear, from 10 in 1978 to 25 in 1996. Finally, the Veteran's June 2014 audiological evaluation reflects findings which meet the requirements of 38 C.F.R. § 3.385. Specifically, the VA examination reflects hearing loss of 25 dB or more at all frequencies. Given the presence of a threshold shift in active service, the nature of the Veteran's acoustic trauma, and the presence of current hearing loss for VA purposes, the Board finds that it is at least as likely as not that at least some of his hearing loss is etiologically related to service. Therefore, service connection is warranted on this basis. ORDER Service connection for bilateral hearing loss is granted. ____________________________________________ B.T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs