Citation Nr: 18146244 Decision Date: 10/31/18 Archive Date: 10/30/18 DOCKET NO. 13-34 519 DATE: October 31, 2018 ORDER Service connection for bilateral hearing loss is granted. REFERRED The issue of ringing in ears (tinnitus) was claimed by the Veteran on his Application for Disability Compensation and Related Compensation Benefits, VA Form 21-526EZ, received in July 2016; is currently under review by the Agency of Original Jurisdiction (AOJ) for adjudication; and will as such will not be discussed here. FINDING OF FACT Resolving all doubt in the Veteran’s favor, the Board finds that the evidence of record, to include the Veteran’s competent and credible descriptions of continuity of symptoms from military service to present, supports a finding that the Veteran’s currently diagnosed bilateral hearing loss is the result of acoustic trauma experienced during military service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110 (wartime), 1112, 1113, 1131 (peacetime), 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 1968 to October 1969 in the Navy. This matter comes before the Board of Veterans’ Appeals (Board) from a May 2011 rating decision by the Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. Subsequent to the issuance of the Supplemental Statement of the Case in October 2013, additional documents were associated with the Veteran’s claims file, to include VA treatment records and private treatment records. The Veteran’s substantive appeal was filed and received in April 2012. Review of new evidence submitted by the Veteran must be reviewed by the Agency of Original Jurisdiction (AOJ) before the Board can review it in the first instance, unless the Veteran waives AOJ consideration of the new evidence. 38 C.F.R. § 20.1304(c). The Veteran submitted a waiver that he waives AOJ consideration for the newly submitted evidence in March 2018. The Veteran has a current diagnosis of hearing loss, per 38 C.F.R. § 3.385 and the Veteran states that his hearing loss began in service. Certain chronic diseases will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. § 3.303(b), 3.307, 3.309(a). For chronic diseases included in the provisions of 38 U.S.C. §§ 1101 and 38 C.F.R. § 3.309(a), service connection may also be established by showing continuity of symptoms, which requires a claimant to demonstrate (1) a condition “noted” during service; (2) evidence of post-service continuity of the same symptoms; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptoms. Hearing loss is a chronic condition as outlined in 38 C.F.R. § 3.303 (a), (b); Walker, 708 F.3d 1331. The Veteran contends that his bilateral hearing loss began in service and he has experienced the continuity of symptoms since then. The Veteran is competent to report that he experienced symptoms of degraded hearing during his time in the service until the present. He is competent to report that he tried to get treatment for his hearing loss shortly after service, but did not seek further treatment because he was made fun of by the treating physician. It was noted after a review of the records, that the Vet was seen at the VA Medical Center (VAMC) in July 1989 for complaints of hearing loss, mainly in crowds. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Veteran’s statements are also credible as he has consistency reported that his hearing has diminished during service and up until the present time. The Board finds the Veteran’s lay statements to be both competent and credible. The Veteran’s statements are entitled to probative weight, as they are internally consistent with other evidence of record, which shows in-service noise exposure that are attributable to bilateral hearing loss. The Board also finds that while the Veteran’s bilateral hearing loss was not diagnosed during service and did not manifest to a compensable degree within the applicable presumptive period, the Veteran noted the condition began in service, and he has noted that there has been continuity of the same symptomatology since service. The Board will resolve reasonable doubt in the Veteran’s favor to find that bilateral hearing loss was present since service and is attributable to the noise exposure he experienced while in service. Therefore, a grant based upon the continuity of symptomatology is warranted for bilateral hearing loss. The Board acknowledges that the April 2011 VA examiner rendered a negative nexus opinion as to whether the Veteran’s hearing loss was related to active service. The examiner stated that the bilateral hearing loss was not related to military service because comparing the January 1968 and October 1969 audiograms, no significant threshold shifts of hearing were found in either ear. The examiner further stated that the Institute of Medicine in 2005 found there is no scientific basis for delayed hearing loss, ie, normal hearing at separation then hearing loss years later causally attributable to military noise exposure. Other occupational noise exposure and/or presbycusis may be related to current hearing loss. The Veteran later clarified in his remarks at the hearing in February 2018, with the undersigned Veterans’ Law Judge, that he has not been exposed to noise as great as the noise exposure during service without hearing protection. Post-service civilian occupational noise exposure was relied on in part by the negative April 2011 VA opinion. Based on the Veteran’s report, the April 2011 VA examination and opinion is of limited probative value because it was based, at least in part, on what appears to be an inaccurate factual premise regarding the amount of Veteran’s post-service occupational noise exposure. Nonetheless, under the provisions of 38 C.F.R. § 3.303(b), a medical nexus opinion is not required. See Walker, 708 F.3d 1331, 1336 (stating that “there is no ‘nexus’ requirement for compensation for a chronic disease which was shown in service”). The Veteran has a current diagnosis of hearing loss in the left ear as well as the right ear. The VA examination of April 2011 showed hearing loss for VA purposes only in the left ear. The right ear had no hearing loss for VA purposes. The Veteran has, provided private treatment records and audiograms, showing that both ears currently meet the auditory threshold for hearing loss for VA purposes. Specific to claims for service connection, hearing loss is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels or greater; the thresholds 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. Accordingly, the Board finds that the preponderance of the evidence favors a grant of service connection for bilateral hearing loss. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Kim, Associate Counsel