Citation Nr: 18143732 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 15-46 497 DATE: October 22, 2018 ORDER Service connection for bilateral hearing loss is granted. FINDING OF FACT The competent and probative evidence is at least in equipoise as to whether the Veteran’s current bilateral hearing loss for VA purposes had its onset in or is otherwise related to his period of active service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1978 to June 1982. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case previously came before the Board in May 2016, at which time it was remanded for further development – a Board hearing. In March 2017, the Veteran testified, sitting in Baltimore, Maryland, before the undersigned through a video conference. A transcript of that hearing has been associated with the virtual file and reviewed. As the requested development has been completed, no further action to ensure compliance with the remand directives is required. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Entitlement to service connection for bilateral hearing loss. After review of the record, the Board finds that the criteria for service connection for bilateral hearing loss have been met. A veteran is entitled to compensation for disability resulting from personal injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. To establish service connection, evidence 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 - the so-called “nexus” requirement. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may 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). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994). When a veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The benefit of the doubt rule is a unique standard of proof, and “the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding such benefits.” Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (citing Gilbert, 1 Vet. App. at 54). For 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 (Hz) is 40 decibels (db) or greater; or when the auditory thresholds for at least three of the above frequencies 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. In Hensley v. Brown, 5 Vet. App. 155 (1993), the United States Court of Appeals for Veterans Claims (Court) stated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service. Id. at 159. The Court explained that, when audiometric test results at a veteran’s separation from service do not meet the regulatory requirements for establishing a “disability” at that time, the veteran may nevertheless establish service connection for a current hearing disability by submitting competent evidence that the current disability is causally related to service. Id. at 160. The Court cited with approval a medical text, which states that the threshold for normal hearing is zero decibels to 20 decibels and higher threshold levels indicate some degree of hearing loss. The competent evidence of record shows that the Veteran has a current bilateral hearing loss disability for VA purposes. See October 2014 VA examination report. Likewise, in a claim of service connection for impaired hearing, demonstration of the first Shedden element—i.e., the existence of a current disability—is subject to the additional requirements of § 3.385, which provides that service connection for impaired hearing shall not be established until the hearing loss meets pure tone and/or speech recognition criteria. Under this regulation, hearing status will be considered a disability for the purposes of service connection when the auditory thresholds in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies 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. In October 2014, the Veteran was given an audiological examination by a VA audiologist, and pure tone thresholds based on air conduction, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 100 100 95 95 100 LEFT 60 65 60 55 35 Speech audiometry revealed speech recognition ability of 64 percent in the right ear and 76 percent in the left year. 10/03/14, VA Examination. All of the thresholds at any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz are 40 decibels or greater, three or more of the thresholds are 26 or greater, and speech recognition is less than 94 percent in both ears. Accordingly, the Board finds that the weight of the competent and probative evidence supports a finding of bilateral hearing loss for VA purposes. See 38 C.F.R. § 3.385. In March 2017, the Veteran testified that he experienced noise exposure in service from working with 30K and 45K generators at a missile site, as well as in the motor pool. 3/27/17, Hearing Testimony. Furthermore, the Veteran’s military occupational specialty (MOS) as a Light Wheel Vehicle/Power Generation has a designation high probability of exposure to hazardous noise. 10/07/2014 VA 21-2507a. Likewise, the Veteran stated that he experienced ringing in his ears throughout service. 3/27/17, Hearing Testimony. Therefore, the Board finds that the credible and probative evidence is at least in equipoise as to whether the Veteran had in-service exposure to hazardous noise. The remaining question is whether there is a link between the current disability and the in-service noise exposure. The Veteran has stated that he first noticed his hearing loss during his period of active service, and that he has had hearing loss since leaving service. 3/27/17, Hearing Testimony. The Veteran is competent to attest to diminished hearing, to include when such diminished hearing began, and the Board finds these assertions to be credible in this regard. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). An October 2015 private medical opinion concluded that the Veteran’s bilateral hearing loss is at least as likely as not related to the Veteran’s active duty service. The private examiner further opined that an audiogram could be normal months or years following acoustic trauma, and then hearing loss and tinnitus could develop years later, related to the prior acoustic trauma, due to cochlear deterioration and damage that is undetectable by audiogram. The private examiner stated that current medical literature suggests that noise-induced damage to the ear has progressive consequences that are considerably more widespread than are revealed by conventional threshold testing, and that many people suffer from hearing loss present without typical cochlear damage and exhibit normal parameters on audiograms. Accordingly, given the Veteran’s frequent and recurring exposure to extreme noise levels during service, the examiner opined that the Veteran’s hearing loss is at least as likely as not related to his miliary service. 10/19/15, Medical Treatment Record – Government Facility. The Board notes that there is no documentation of any pertinent complaints for over a decade after service. On the other hand, the Veteran had noise exposure in service and the absence of documented complaints is not dispositive. In general, the Board may not rely on the absence of evidence as substantive negative evidence, the exception being when there is an evidentiary basis establishing that a fact in question would ordinarily have been recorded in the document or documents in question. See Horn v. Shinseki, 25 Vet. App. 231, 239 & n. 7 (2012). The Board acknowledges the October 2014 VA examiner’s opinion that the Veteran’s hearing loss is less likely than not related to service. In support, the examiner noted that an enlistment audiogram dated October 1977, as well as another audiogram dated May 1982, showed the Veteran’s hearing thresholds well within normal limits bilaterally. Although the examination report indicated a significant hearing loss evident in the audiological evaluation dated October 2014, the examiner opined that development of hearing loss long after the cessation of noise exposure in service is unlikely. 10/10/14, VA Medical Opinion. The Board notes that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Board finds that the evidence is at least in equipoise regarding whether the current bilateral hearing loss is related to in-service acoustic trauma. For example, the Board places substantial weight on the October 2015 private medical opinion because the pertinent records were reviewed to include service treatment records and a rationale of a service connection for hearing loss, despite an audiogram result within normal limits shortly after separation. On the other hand, the October 2014 VA opinion is of less probative weight because it solely relies on audiograms at enlistment and separation, and does not contemplate cochlear deterioration and damage that is undetectable by audiogram. (Continued on the next page)   In sum, the Board finds that the competent and probative evidence is at least in equipoise as to whether the Veteran’s current bilateral ear hearing loss for VA purposes is related to in-service acoustic trauma. As such, the Board service connection for bilateral hearing loss is granted. 38 U.S.C. § 5107(b). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Han, Associate Counsel