Citation Nr: 18139955 Decision Date: 10/01/18 Archive Date: 10/01/18 DOCKET NO. 12-13 588 DATE: October 1, 2018 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT Resolving all doubt in the Veteran's favor, the Veteran's currently diagnosed bilateral hearing loss was incurred during active service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107 (2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from January 1974 to January 1977. This matter comes before the Board of Veterans' Appeals (Board) from a March 2012 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In May 2013, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing. A transcript of this hearing is of record. This matter as previously before the Board in October 2014 and June 2017, when it was remanded for further evidentiary and procedural development. Further, in May 2018, the Board requested a medical advisory opinion from the Veterans Health Administration (VHA) concerning a medical issue raised by the Veteran's appeal. 38 U.S.C. § 7109 (West 2002); 38 C.F.R. § 20.901 (a) (2017). As will be further discussed below, the Board is granting the Veteran's claim in full, and thus, no further discussion is necessary concerning whether the Board's prior remand directives were substantially completed. Issue not on appeal The Veteran previously perfected an appeal to the Board regarding an issue to establish service connection for bilateral tinnitus. In June 2017, the Board granted the Veteran’s appeal in full, and this allowance was implemented by the Agency of Original Jurisdiction (AOJ) in a June 2017 rating decision; a 10 percent initial evaluation was assigned, effective from April 22, 2011. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). As the Veteran did not express disagreement with these downstream matters in a timely fashion, neither are in appellate status. Archbold v. Brown, 9 Vet. App. 124 (1996). 1. Entitlement to service connection for bilateral hearing loss Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b), Walker v. Shinseki 708 F.3d 1331. (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, VA shall give the benefit of the doubt to the Veteran. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the present of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153 (a) (West 2014); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Although lay persons are considered competent to provide opinions on some medical issues, some medical issues fall outside of the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Specific to claims for service connection for hearing loss, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000 or 4000 Hertz is 40 decibels or greater; the threshold for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC test are less than 94 percent. 38 C.F.R. § 3.385 (2016). When there is no diagnosis of hearing loss in service, the absence of documented hearing loss in service is not fatal to a service connection claim for such disability, especially if service records indicate a significant in-service threshold shift. Ledford v. Derwinski, 3 Vet. App. 87 (1992); Hensley v. Brown, 5 Vet. App. 155 (1993). Establishing service connection is possible if the current hearing loss can be adequately linked to service. Ledford, 3 Vet. App.at 89. Thus, a claimant who seeks to establish service connection for a current hearing disability must show, as is required in a claim for service connection for any disability, that the current disability is the result of an injury or disease incurred in service; the determination of which depends on a review of all of the evidence of record. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Additionally, other organic diseases of the nervous system, such as sensorineural hearing loss, are classified as “chronic diseases” under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) also applies. 38 C.F.R. § 3.307; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Presumptive service connection for “chronic diseases” must be considered on three bases: chronicity during service, continuity of symptomatology since service, and manifestations within one year of the veteran’s separation from service. Walker, 708 F.3d at 1338. Analysis The Veteran asserts that his current bilateral hearing loss disability was incurred during his active duty, secondary to in-service exposure to excessive noise from computers and machines in a small, confined space. Upon his audiometric testing in January 2015 and October 2017, the Veteran demonstrated decibel losses which meet the criteria for a VA disability, and the examiner provided a diagnosis of bilateral sensorineural hearing loss. As such, element (1) is demonstrated. Concerning element (2), evidence of an in-service injury, at the May 2013 hearing, the Veteran also testified that he worked as an IBM machine operator during service, and that his duties included working in close proximity to multiple noisy punch card machines in a small, confined room without hearing protection for 8 hours each day. The Board observes that the Veteran’s assertions are congruent with his service records, reflecting that his Military Occupational Specialty (MOS) during active duty was Computer Machine Operator. The Veteran also testified that he noticed decreased hearing acuity during his active duty. To this point, the Board notes that the Veteran’s hearing was tested twice during active duty, and while the test results do not meet the criteria of a hearing loss disability for VA purposes at that time, the results show some degree of hearing loss, with thresholds of more than 20 decibels, in each ear. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). In light of the Veteran’s in-service noise exposure and his demonstrated decibel losses during active duty, element (2) has been amply demonstrated. Concerning element (3), evidence of a medical nexus between the Veteran’s in-service noise exposure and his currently diagnosed bilateral hearing loss, there are three nexus opinions of record, and all are unfavorable to the Veteran’s appeal. However, as noted by the Board in the prior remands, the nexus opinions provided by the January 2015 and October 2017 VA examiners are inadequate because the rationales were based on a lack of evidence bilateral hearing loss for VA purposes during the Veteran’s active duty, which is contrary to the United States Court of Appeals for Veteran’s Claims’ (the Court’s) holding in Ledford. As such, the January 2015 and October 2017 VA opinion are afforded little probative weight. Similarly, while the unfavorable July 2018 VHA opinion is very well-researched and stated, the rationale is largely based on the 2004 Handbook of Standard Procedures and Best Practice for Audiology Compensation and Pension examinations (Handbook), which provides that hearing levels from 0-25 decibel losses are considered normal. However, the Board notes that these guidance materials conflict with the threshold standard discussed in Court’s precedential holding in Hensley, indicating that only hearing levels from 0-20 decibel losses are considered normal. According, as stated above and contrary to the finding of the July 2018 VHA opinion, the Veteran in this case had some degree of hearing loss during active duty. Unfortunately, this critical point diminishes the probative value of the July 2018 VHA opinion. In light of above, the Board concludes that the three nexus opinions of record are inadequate for the purpose of adjudicating the Veteran’s appeal; however, lack of an adequate medical nexus opinion is not fatal. In the present case, as recounted above, the Veteran has consistently reported that his hearing loss began during active duty, while he was performing his duties as an IBM machine operator. The Board notes that the Veteran is competent to identify reduced hearing acuity and he is competent to report when he first started experiencing the symptoms of his hearing loss disability. Heuer v. Brown, 7 Vet. App. 379 (1995). Further, the credibility of these statements is bolstered by the in-service audiograms reflecting some degree of hearing loss, as per Hensley. Further, these statements are not contradicted by any evidence of record, and the Board finds them both to be competent and credible, thus, affording them high probative value. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board has considered the January 2015 and October 2017 VA medical opinions with respect to the etiology of the Veteran’s current bilateral hearing loss. However, the Board has assigned these opinions low probative value because the examiner’s rational is contrary to the Court’s holding in Ledford. Similarly, the rationale of the July 2018 VHA opinion is based on guidance materials, which are outweighed by the Court’s precedential and controlling decision in Hensley. The Board concludes that, had the examiners been aware of the Court’s holdings, in the face of the other supporting evidence, the opinions would have likely been different. Accordingly, the Board finds that the evidence is at least in equipoise regarding whether the Veteran’s current bilateral hearing loss was incurred in service. Accordingly, and affording the Veteran the benefit of the doubt, the Board finds that service connection for bilateral hearing loss is warranted. 38 U.S.C. § 1110, 1131, 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Scott W. Dale, Counsel