Citation Nr: 1806070	
Decision Date: 01/31/18    Archive Date: 02/07/18

DOCKET NO.  14-31 197	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Veteran represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

Veteran and Spouse


ATTORNEY FOR THE BOARD

N. Stevens, Associate Counsel


INTRODUCTION

The Veteran had active service from October 1956 to September 1959 and from August 1960 to August 1966.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which denied the benefit being sought.   

The Veteran and his spouse testified at a Board hearing in November 2017 before the undersigned Veterans Law Judge (VLJ).  Upon adjournment of the hearing, the Veteran through his representative submitted additional medical evidence and waived his right to have it initially considered by the RO.  38 C.F.R. §§ 20.800, 20.1304(c) (2017).  A copy of the transcript is of record.  

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 bilateral hearing loss is related to service.  


CONCLUSION OF LAW

The Veteran's bilateral hearing loss was incurred in service.  38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 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 active military service.  38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017).  If there is no showing of a resulting chronic condition during service, then a showing of the continuity of symptomatology after service is required to support a finding of chronicity for certain diseases.  38 C.F.R. §§ 3.303 (a), (b), 3.309(a) (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303 (d) (2017).  
In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability.  38 C.F.R. § 3.303 (2017); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  
The Board must determine the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The evaluation of evidence generally involves a three-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007).  The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record.  

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C. § 5107 (2012).  A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  38 C.F.R. § 3.102 (2017).  When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must be against the claim for benefits to be denied.  Alemany v. Brown, 9 Vet. App. 518 (1996).  
For VA purposes, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385 (2017).  The threshold for normal hearing is between 0 and 20 decibels, and higher thresholds show some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  
The Veteran underwent a VA audiology examination in June 2013.  His pure tone thresholds, in decibels, were as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
25
45
55
65
75
LEFT
35
70
70
70
80

The average puretone threshold was 60 in the right ear and 72 in the left ear.  The Veteran's word recognition score using the Maryland CNC test was 64 percent in the right ear and 68 percent in the ear.  The Veteran's hearing loss meets the criteria to be considered a disability for VA purposes.  38 C.F.R. § 3.385 (2017).  Thus, the first element of a service connection claim is satisfied.  Shedden, 381 F.3d at 1166-67.  

At his November 2017 hearing, the Veteran competently and credibly testified that he was trained as an infantryman, assigned to field artillery units working with 105 Howitzers and sent to Vietnam in combat.  Additionally, he was exposed to hazardous noise as a parachutist.  He testified that he flew on and made 98 jumps from UH-1 (nicknamed "Huey") utility military helicopters and C-123 military transport aircrafts.  He was never given any protection or a proper hearing test.  The Board finds his statements regarding his in-service noise exposure to be both competent and credible.  Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303, 308 (2007).  The second element of a service connection claim is satisfied.  Shedden, 381 F.3d at 1166-67.  
At his June 2013 VA examination, the examiner provided a negative nexus opinion.  He cited as his rationale that upon enlistment, the Veteran had no puretone testing, but rather a "Whispered voice test," and at separation, the puretone audiogram revealed 0-decibel levels at 500, 1000, 2000 and 4000 Hertz.  VA recognizes whispered voice tests as unreliable.  Thus, the Board assigns no probative value to this June 2013 VA audiological examiner's negative nexus opinion.  Jones v. Shinseki, 23 Vet. App. 382, 389-90 (2010).  
During his November 2017 hearing, the Veteran also testified that he noticed hearing problems at 18 years old when he jumped from a helicopter at Fort Bragg.  His hearing loss has gradually worsened since that time.  Hearing loss is a chronic condition as set forth in 38 C.F.R. § 3.309 (a).  Therefore, the theory of the continuity of symptomatology is applicable in this case.  38 C.F.R. § 3.303 (a), (b) (2017); Walker, 708 F.3d 1331.  The Board finds the Veteran's testimony to be both competent and credible and therefore a grant based on the continuity of symptomatology is warranted.  
Accordingly, the Board finds that the preponderance of the evidence is in favor of service connection for bilateral hearing loss.  38 U.S.C. § 5107 (b) (2017).  The appeal is, therefore, granted.  


ORDER

Service connection for bilateral hearing loss is granted, subject to the laws and regulations governing the payment of monetary benefits.  



____________________________________________
D. Martz Ames
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs