Citation Nr: 1806067 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 14-20 845 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD D. Bassett, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1955 to January 1957. This case is before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. In May 2017, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of the testimony is associated with the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, there is at least an approximate balance of positive and negative evidence regarding whether the Veteran has a bilateral hearing loss disability that is related to his active service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As the Board's decision below represents a complete grant of the benefits sought on appeal, namely granting entitlement to service connection for bilateral hearing loss, discussion of the Duties to Notify and Assist is not required. II. Service Connection The Veteran seeks service connection for bilateral hearing loss. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a veteran 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. E.g., Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting from disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). The Veteran is currently diagnosed with bilateral sensorineural hearing loss. Sensorineural hearing loss, as an organic disease of the nervous system, is a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the Board finds that the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease evidenced as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). With respect to claims for service connection for hearing loss, the United States Court of Appeals for Veterans Claims (Court) has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court further opined that 38 C.F.R. § 3.385, discussed below, then operates to establish when a hearing loss disability can be service connected. 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, 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 credibility and weight of all the evidence, including the medical evidence, should be assessed to determine its probative value, and the evidence found to be persuasive or unpersuasive should be accounted for, and reasons should be provided for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. It is the Board's responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Lay evidence has been found to be competent with regard to a disease that has "unique and readily identifiable features" that are "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007); see also Charles v. Principi, 16 Vet. App. 370, 374-75 (2002) (providing that a veteran's testimony regarding tinnitus is competent evidence, as "ringing in the ears is capable of lay observation"). The Veteran asserts entitlement to service connection for bilateral hearing loss. The Board finds that entitlement to service connection for bilateral hearing loss is warranted. As noted above, impaired hearing is considered a disability when certain audiological limitations are present. The results of the April 2013 VA examination indicate the presence of a bilateral hearing loss disability. The Veteran's auditory thresholds at 500 through 4000 Hertz (Hz) exceed 40 decibels in both ears and the average thresholds in both ears for at least three frequencies, for example at 2000, 3000, and 4000 Hz in both ears, exceeded 26 decibels. Thus, the first Shedden element is met as the Veteran has a bilateral hearing loss disability for VA purposes. The Veteran further testified at the hearing that he fired multiple types of machine guns in service without hearing protection. He reported that he spent 19 months of his service as the primary machine gunner. He also reported becoming an expert at firing a mortar and using grenades. The Veteran's DD-214 confirms that his in-service specialty was a light weapons infantryman. Thus, the second Shedden element is met, as there is evidence of an in-service exposure to acoustic trauma. The Veteran also asserted that his in-service noise exposure led to his current hearing loss disability. The Veteran noted in his initial October 2012 claim that he was exposed to loud noises in service, but then spent the next 52 years working as a mortician and was not exposed to any loud noises. VA solicited an opinion addressing the etiology of the Veteran's hearing loss in April 2014. However, that VA examiner did not address the Veteran's in-service noise exposure, his post service lack of noise exposure, and research supporting the concept of delayed or latent onset noise induced hearing loss. As such, the Board requested an opinion addressing these issues. The November 2017 opinion fails to adequately resolve the evidence against and in support of the Veteran's claim. The opinion by N.Y., M.D., concluded that the Veteran's bilateral sensorineural hearing loss is less likely than not due to the Veteran's service. However, in doing so, the opinion merely compared the competing studies. One study concluded that "there was not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure." The opinion pointed out that the competing study supporting the concept of delayed or latent onset hearing loss misquoted the first study. On the other hand, Dr. N.Y. did not explain the importance of the misquotation and to the Board it is found to be immaterial to the conclusions reached in the study. Dr. N.Y. did not compare the research or study methods and did not explain how the competing theories apply to the Veteran's claim. The Board is therefore left with an opinion that compares competing studies without meaningfully resolving the conflict. In this scenario, where one study favors the Veteran's claim and the other study does not, the Board finds that the evidence is at least in relative equipoise and that the Veteran's claim must be granted. See Gilbert, 1 Vet. App. at 49. ORDER Entitlement to service connection for bilateral hearing loss is granted. ____________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs