Citation Nr: 18144995 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 14-32 112 DATE: October 25, 2018 ORDER Service connection for bilateral sensorineural hearing loss is granted. FINDINGS OF FACT 1. The Veteran was exposed to loud noise and sustained acoustic trauma during service. 2. The Veteran has a current disability of bilateral sensorineural hearing loss for VA purposes. 3. The bilateral sensorineural hearing loss was caused by the loud noise exposure in service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for bilateral sensorineural hearing loss have been met. 38 U.S.C. §§ 1110, 1112, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1967 to August 1969. This matter is on appeal from a June 2013 rating decision issued by the RO in Detroit, Michigan. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159 (2017). The Board grants service connection for bilateral sensorineural hearing loss, constituting a full grant of the benefit sought on appeal with respect to this issue; therefore, no discussion of VA’s duty to notify and to assist is necessary. Legal Authority for Service Connection Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. 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). The Veteran is currently diagnosed with bilateral sensorineural hearing loss, which are organic diseases of the nervous system and considered a “chronic” disease under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for “chronic” in-service symptoms and “continuous” post-service symptoms apply. Where a veteran served ninety days or more of active service and the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. 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 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). Presumptive service connection is also available for sensorineural hearing loss that manifests to a compensable degree within one year of service separation. 38 C.F.R. § 3.307. Service Connection for Bilateral Sensorineural Hearing Loss The Veteran contends that he has bilateral sensorineural hearing loss and claims that it was caused by noise exposure during service as an Army armor crewman. He describes being exposed to loud noises from artillery, tank engines, helicopters, and jets, and asserts that he began experiencing symptoms of hearing loss in service. See October 2013 private treatment records. The Veteran contends that the bilateral sensorineural hearing loss began in service. See October 2013 Statement in Support of Claim. For VA purposes, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz are 26 dB or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is from 0 to 20 dBs decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). After a review of all the evidence, the Board finds that the Veteran was exposed to loud noise (acoustic trauma) while in service. The DD Form 214 reflects the military occupational specialty (MOS) was as an Army armor crewman, which indicates a high probability of hazardous noise exposure during service. The Veteran also reported loud noise exposure during service, and that hearing loss began during service. The evidence shows that the Veteran has a current bilateral sensorineural hearing loss disability as defined by the VA regulatory criteria under 38 C.F.R. § 3.385. See January 2013 private treatment records, June 2013 VA examination, and October 2013 private treatment records. The evidence is at least in relative equipoise on the question of whether the current hearing loss is directly connected to the loud noise exposure in service. Service treatment records demonstrate that bilateral sensorineural hearing loss was not noted on the September 1967 service entrance examination. There are no complaints of or treatment for sensorineural hearing loss during service. Bilateral sensorineural hearing loss was not noted on the June 1969 service separation examination. In addition, service treatment records indicate that there was no threshold shift during service when comparing the service entrance and separation examinations. The first report of symptoms related to the bilateral sensorineural hearing loss on the record are in the August 2012 Application for Compensation or Pension, approximately forty-three years after separation from service. On the question of nexus of current hearing loss to in-service loud noise exposure, a VA examiner in June 2013 opined that the Veteran’s bilateral sensorineural hearing loss is less than likely as not caused by acoustic trauma in service. This opinion was based on the inaccurately stated assumption that the Veteran did not have a current bilateral sensorineural hearing loss at a disabling level for VA purposes, even after noting speech discrimination score of 92 percent in the right ear and 84 percent in the left ear. The June 2013 VA examination also documented puretone thresholds as such: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 10 dB 10 dB 10 dB 25 dB 50 dB Left Ear 20 dB 20 dB 35 dB 50 dB 55 dB The VA examiner in June 2013 also stated as a basis for the opinion that service entrance and separation examinations were normal and that there was no significant threshold shift during service. The June 2013 VA examiner’s opinion is of significantly lessened probative value because it is based on two factual or legal errors. First, the examiner was incorrect in assuming that the Veteran does not have current bilateral sensorineural hearing loss for VA purposes (according to 38 C.F.R. § 3.385), when in fact he does. The speech discrimination scores are below 94 percent in both ears and there are auditory thresholds above 40dB at the 3000 Hz and 4000 Hz frequencies. Second, the rationale underlying the VA examiner’s purported direct service connection negative opinion in June 2013 commits the legal error of requiring hearing loss to a disabling degree (to meet the standards of 38 C.F.R. § 3.385) during service. This is an extra-legal requirement that is contrary to statute, regulation, and case law (that unfortunately still appears in VA rating decision boilerplate language). See 38 C.F.R. § 3.303(d) (“Postservice initial diagnosis of disease. Service connection may be granted for any disease diagnosed after discharge”); Godfrey v. Derwinski, 2 Vet. App. 352 (1992) (holding that a veteran is “not obligated to show that hearing loss [to 38 C.F.R. § 3.385 standards] was present during active military service”); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (the absence of documented hearing loss in service, including no audiometric test at service separation and where the known audiometric test scores in service were “within normal limits,” does “not serve as a bar to service connection”); Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (evidence of a current hearing loss disability meeting the requirements of 38 C.F.R. § 3.385 and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for claimed hearing loss even where hearing was found to be within normal limits on audiometric and speech-recognition testing at the time of separation from service); 38 C.F.R. 3.303(b) (sensorineural hearing loss only needs “continuous symptoms” since service to relate the current sensorineural hearing loss disability to service for presumptive service connection for one of the “chronic” diseases under 38 C.F.R. § 3.309(a)). Such legal error by a VA examiner may not be adopted by a VA adjudicator and passed off as a mere medical opinion; it is still legal error, whether committed by a VA examiner or a VA adjudicator, to require that hearing loss meet the 38 C.F.R. § 3.385 standards during service. In the October 2013 private treatment records, the private examiner reviewed the September 1967 service entrance examination and June 1969 service separation examination. The private examiner opined that it is as likely as it is not that the Veteran’s bilateral sensorineural hearing loss was initiated by acoustic trauma in service and aggravated by post-service occupational and recreational noise exposure as well as presbycusis. The Board finds the October 2013 private treatment records at least as probative as the June 2013 VA opinion on the question of nexus of current hearing loss to in-service noise exposure. The VA examiner conducting the June 2013 VA examination rendered a legally inaccurate diagnosis, inaccurately assumint that the Veteran did not have hearing loss disability for VA purposes (38 C.F.R. § 3.385), when in fact he did. The VA examiner then relied on this inaccurate assumption as to diagnosis when rendering the negative nexus opinion. Moreover, the June 2013 VA examination did not include in the history the report of continuity of symptomatology since separation from service and post-service noise exposure, and did not address this fact when providing rationale for the opinion; therefore, the Board finds the June 2013 VA opinion to be of diminished probative value. For these reasons, and resolving reasonable doubt in the Veteran’s favor, the Board finds that bilateral sensorineural hearing loss, as defined by the VA regulatory criteria at 38 C.F.R. § 3.385, is directly connected to service (under 38 C.F.R. § 3.303(a),(d)). As the full benefit of service connection is being granted on the basis of direct service connection, there is no need to discuss entitlement to service connection on a presumptive or any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C. § 7104 (the Board’s jurisdiction is only over “questions” of fact and law in a “matter” on appeal). J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Danielle Costantino, Associate Counsel