Citation Nr: 1805984 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 14-12 734 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Kate Sosna, Associate Counsel INTRODUCTION The Veteran had active duty service from January 1957 to January 1960 and from October 1961 to August 1962. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in September 2011 by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A hearing transcript is associated with the record on appeal. Thereafter, in August 2017, the Board remanded the matter for additional development and it now returns for further appellate review. 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 the Veteran's favor, his currently diagnosed bilateral hearing loss is related to his military service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1101, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Certain chronic disabilities (including sensorineural hearing loss) are presumed to have been incurred in service if (a) manifest to compensable degree within one year of discharge from service; (b) there is evidence of the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and present manifestations of the same chronic disease; or (c) when a chronic disease is not present during service, evidence of continuity of symptomatology. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see also Memorandum from Under Secretary of Health to Under Secretary for Benefits, Characterization of High Frequency Sensorineural Hearing Loss, October 4, 1995. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the 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 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. The United States Court of Appeals for Veterans Claims (Court) has held that service connection can be granted for hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service. Hensley, supra, at 159. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran seeks service connection for his currently diagnosed bilateral hearing loss (see 38 C.F.R. § 3.385 and September 2011 VA audiological examination), which he contends is related to his in-service noise exposure. In this regard, he reported that, while in a basic infiltration course in 1957, he was near an artillery simulator when it went off and, thereafter, was exposed to noise in the course of his duties as a radio operator, to include as a result of his work intercepting and deciphering Morse code. He also claims that he was aware of difficulty hearing prior to his separation from service, and such has continued to the present time. The Veteran further states that the only post-service noise exposure occurred when he was employed at a printing company; however, he was furnished ear protection. Therefore, he claims that service connection for bilateral hearing loss is warranted. The Veteran was afforded a VA examination in September 2011. As noted in the August 2017 Board remand, the opinion was inadequate for appellate review as the examiner did not discuss an in-service threshold shift in the Veteran's hearing at 4000 Hertz and, in contradiction to Hensley, supra, the examiner based her entire opinion on the fact the Veteran did not have hearing loss for VA purposes during his military service. Unfortunately, an August 2017 addendum opinion is also inadequate for appellate review. In this regard, the examiner ignored the Board's finding regarding the threshold shift at 4000 Hertz and stated that the lack of a threshold shift in service proved the Veteran did not have hearing damage in service; thus, her opinion was based, at least in part, on an inaccurate factual premise and is therefore without probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) ("An opinion based upon an inaccurate factual premise has no probative value.). Further, the examiner stated the lack of an audiogram within one year of the Veteran's separation from service prevented her from providing an opinion as to whether the Veteran manifested hearing loss within one year of separation. In this regard, she challenged the veracity of the Veteran's reports regarding the onset of his hearing loss. Notably, after the Board issued the August 2017 remand and prior to the procurement of the August 2017 addendum opinion, VA received an April 2017 private opinion from a private audiologist, Dr. K.W. After reviewing the Veteran's in-service audiograms, interviewing him regarding his noise exposure history, and performing audiological testing, Dr. K.W. opined it was at least as likely as not that the Veteran's military noise exposure caused his bilateral hearing loss. In support thereof, she acknowledged that noise-induced hearing loss initially manifests as reduced hearing acuity in thresholds from 4000 to 6000 Hertz and that secondary noise effects can develop even after termination of the noise exposure. She further noted medical data regarding average hearing abilities for persons unexposed to excessive noise and noted the Veteran's hearing ability was less than the average persons, thus indicating his hearing loss was attributable to factors other than age. She further noted that, as he wore hearing protection or worked in quiet environments after service, his only exposure to excessively loud noise was during service. Additionally, the Veteran did not have a family history of hearing loss and had not used ototoxic medications that could account for the severity of his hearing loss. Thus, in her professional opinion, the Veteran's hearing loss was related to his military service. The Board finds that the April 2017 opinion provided by Dr. K.W. is highly probative regarding a connection between the Veteran's bilateral hearing loss and his military service. She provided a detailed rationale for the conclusion reached, and provided support for her findings. Further, she has proven an advanced ability in assessing the etiology of hearing loss as reflected by the expertise required to work as an audiologist. Moreover, the Board has found that the other opinions are inadequate to decide the claim. Thus, the Board finds that the April 2017 opinion is the most probative evidence of record regarding the relationship between the Veteran's service and his diagnosed bilateral hearing loss. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). Therefore, resolving all doubt in the Veteran's favor, the Board finds that his currently diagnosed bilateral hearing loss is related to his military service. Consequently, service connection for such disorder is warranted. ORDER Service connection for bilateral hearing loss is granted. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs