Citation Nr: 18145827 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 16-38 757 DATE: October 30, 2018 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT The Veteran’s bilateral hearing loss had its onset in service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1970 to April 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 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). 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. Additionally, other organic diseases of the nervous system, which may include sensorineural hearing, 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); Fountain v. McDonald, 27 Vet. App. 258 (2015) (including tinnitus as an organic disease of the nervous system). 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. Every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment, and was not aggravated by such service. 38 U.S.C. § 1111 (2012). In order to rebut the presumption of sound condition under 38 U.S.C. § 1111, the government must demonstrate by clear and unmistakable evidence both that the disease or injury existed prior to service, and that the disease or injury was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Bilateral Hearing Loss The Veteran’s service treatment records (STRs) indicate that he was afforded an audiological examination in June 1970 upon entry into service. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 30 30 50 80 LEFT 40 35 25 45 90 The examiner did not diagnose bilateral hearing loss, nor was the Veteran given a limited physical profile. The Veteran was afforded an audiological examination in March 1972 upon separation from service. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 0 0 10 55 LEFT 15 0 0 20 55 Based on the results, the Veteran was diagnosed with bilateral high frequency hearing loss. The competent medical evidence indicates the Veteran has a current disability. The Veteran received an audio examination in March 2013. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 35 70 80 LEFT 5 15 25 70 70 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 percent in the left ear. As a result of these findings, the examiner diagnosed the Veteran with bilateral sensorineural hearing loss. She noted that the Veteran’s hearing loss pre-existed service, and therefore was less likely than not caused or aggravated by service. She also found that the Veteran’s hearing loss was not aggravated beyond the normal progression by service, as the Veteran’s separation audiogram showed improvement in hearing with loss only at the 4000 Hz level bilaterally. The Veteran submitted correspondence in June 2015 and indicated that he was told by medical personnel in active service that his hearing was damaged as a result of his service around jets while working on an aircraft carrier. He declined compensation when he was discharged because he was concerned that a disability rating would have a negative impact on future employment opportunities. However, he suffered with the disability his entire working career. At the outset, the Board notes that a diagnosis of bilateral hearing loss was not noted at his entrance to service. Furthermore, the evidence of record also does not reflect that bilateral hearing loss, even if it was pre-existing, clearly and unmistakably was not aggravated during service. In addition, the audiogram readings at entry are found to be inconsistent with both the contemporaneous whisper voice examination conducted at entry and the separation examination readings, and the Board is therefore unable to conclude that his hearing loss disability existed prior to entry. Because there is no clear and unmistakable evidence that the Veteran’s bilateral hearing loss pre-existed service and was not aggravated during service, the Board finds that the presumption of soundness is not rebutted and the Veteran’s claim becomes one of direct service connection. Here, the Board finds that the Veteran has impaired bilateral hearing productive of a disability under 38 C.F.R. § 3.385. Thus, the first element of service connection is met. Regarding in-service incurrence, as previously stated, the Veteran attributes his hearing loss to in-service acoustic trauma related to his MOS. The Board finds the Veteran’s account of acoustic trauma from jet aircraft to be credible and consistent with the circumstances of his service. Because in-service noise exposure is established, the second element of service connection has been met. Turning to the nexus element, the Board acknowledges that the March 2013 VA examiner opined that the Veteran’s hearing loss is not related to military service. The VA examiner’s conclusion is a medical conclusion that the Board cannot ignore or disregard, see Willis v. Derwinski, 1 Vet. App. 66 (1991); however, the Board is free to assess medical evidence and is not compelled to accept a medical opinion. See Wilson v. Derwinski, 2 Vet. App. 614 (1992). The evidence of record otherwise includes lay statements from the Veteran that his hearing loss first began during his active service. Resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran has experienced continuous bilateral hearing loss symptoms since service to meet the requirements of presumptive service connection under 38 C.F.R. 3.303(b). The lay statements from the Veteran convey that the Veteran first experienced hearing loss in service. Such evidence is sufficient to place in equipoise the question of whether the Veteran experienced continuity of symptomatology of bilateral hearing loss since service. The record also reflects a diagnosis of hearing loss disability at service separation and a current diagnosis of this disability such that service connection is also appropriate on the basis of chronicity. In sum, the Board finds that the evidence is at least in equipoise regarding whether the Veteran’s current bilateral hearing loss was incurred in service. Hence, affording him the benefit of the doubt, service connection for bilateral hearing loss is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Daniels, Associate Counsel