Citation Nr: 18143577 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 16-27 464A DATE: October 19, 2018 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT The Veteran’s bilateral hearing loss had its onset during active service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1112, 1154, 5107(b); 38 C.F.R. §§ 3.102, 3.303 , 3.385, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty in the United States Marine Corps from April 1966 to January 1968, including combat service in the Republic of Vietnam for which he received the Combat Action Ribbon. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to service connection for bilateral hearing loss is granted. The Veteran asserts that his hearing loss is due to exposure to hazardous noise, specifically weapons and artillery fire without hearing protection, during active service. He maintains that hearing problems began during combat in the Republic of Vietnam, continued while in Vietnam due to being in close-proximity to artillery and mortar rounds, and has continued post-service. See August 2015 statement, September 2015 VA Form 21-526EZ, October 2015 VA examination report, and the January 2016 statement. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Consistent with this framework, service connection may also be granted for a disease first 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). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including organic diseases of the nervous system such as sensorineural hearing loss, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101 (3), 1112(a)(1); 38 C.F.R. § 3.307 (a), 3.309(a). The option of establishing service connection through a demonstration of continuity of symptomatology is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In the case of a veteran who engaged in combat with the enemy during active service during a period of war, VA will accept lay evidence of in-service incurrence of a disease or injury, if the lay evidence of onset is consistent with the circumstances, conditions, or hardships of the veteran’s service, notwithstanding the lack of documentation of this in-service incurrence. See 38 U.S.C. § 1154(b). Further, not only is the combat injury presumed, but also the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). Here, the Veteran has current diagnosis of bilateral hearing loss for VA purposes under 38 C.F.R. § 3.385, satisfying the first element of service connection. See October 2015 VA contract examination report. Additionally, while the Veteran’s service treatment records (STRs) are silent for hearing complaints, the Board finds that his reported in-service acoustic trauma is consistent with the circumstances of his combat service. 38 U.S.C. § 1154 (b). Thus, the combat presumption attaches, and it is presumed that he incurred hearing loss during active service due to his presumed in-service combat noise injury. See Reeves at 999. The Board notes that the October 2015 VA audiologist rendered a negative nexus opinion based on the finding that there was no documented hearing loss at exit and cited to a “whisper test.” Here the Board notes that the “whisper test” (or speaking to him from 15 feet away) is not very reliable, and those results do not assist in determining the extent of change in the Veteran’s hearing loss levels during his service. See Fagan v. Shinseki, 573 F.3d 1282, 1284 (Fed. Cir. 2009). Furthermore, the examiner did not consider all relevant evidence in forming his opinion, such as the Veteran’s statement to a Kaiser Permanente medical provider in June 2014 that he believed that he had hearing problems. Notably, the examiner incorrectly notes that the Veteran denied hearing loss at a “Wellness Visit” in June 2014 when the Veteran endorsed a hearing problem. See June 2014 Kaiser Permanente records. Likewise, the examiner did not consider the Veteran’s August 2015 statement wherein the Veteran reported he experienced multiple periods of deafness, headaches, and bleeding nose and ears in the immediate aftermath of being in close-proximity to enemy mortar fire. Finally, and perhaps critically, the October 2015 examiner did not consider the Veteran’s presumed acoustic trauma (including concussive explosions significant enough to induce bleeding from the ears) and incurrence of hearing loss due to the same in service, or the subsequent reports of hearing loss and continual decrease in hearing loss since active duty. In this regard, the Board finds the Veteran’s report of an onset of hearing loss during his combat service and continual decrease in hearing since that time competent and credible. See August 2015 statement, September 2015 VA Form 21-526EZ, October 2015 VA examination report, and the January 2016 statement. Thus, the October 2015 VA examiner’s opinion is afforded no probative value. In sum, the presumption of in-service acoustic trauma and hearing loss, the Veteran’s competent and credible report of a lack of use of hearing protection during service and a continuity of hearing loss since service, all weigh in favor of a nexus between the current hearing loss disability and the in-service acoustic trauma. Reeves, supra. Accordingly, entitlement to service connection for a bilateral hearing loss disability is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G.Rouse, Associate Counsel