Citation Nr: 18147201 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 14-38 594 DATE: November 2, 2018 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his bilateral hearing loss is at least as likely as not related to his military noise exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from February 1963 to January 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires: (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. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, including organic diseases of the nervous system, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. See 38 C.F.R. § 3.307(a); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. § 1112, 1113; 38 C.F.R. § 3.307 (a)(3), 3.309(a). Sensorineural hearing loss is considered an organic disease of the nervous system. See Fountain v. McDonald, 27 Vet. App. 258 (2015). Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. 38 C.F.R. § 3.303(b). When all the evidence is assembled, the VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. See Gilbert, 1 Vet. App. at 53. Entitlement to service connection for bilateral 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 thresholds for at least three of those 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. Even though disabling hearing loss is not demonstrated at separation, a Veteran may establish service connection for a current hearing disability by submitting evidence that a current disability is causally related to service. See Hensley v. Brown, 5 Vet. App. 155, 157, 159-60, 164 (1993) (also noting that the threshold for normal hearing is from 0 to 20 dB). The Veteran has claimed entitlement to service connection for bilateral hearing loss, asserting that he was exposed to excessive noise and acoustic trauma during his time working in his military occupational specialty (MOS), a jet mechanic, in the United States Air Force. The Veteran received multiple in-service audiological examinations from February 1963 to October 1966. After conversion of the Veteran's in-service audiograms from American Standards Association (ASA) units to International Standards Organization (ISO), as is customary for audiograms from the military prior to October 31, 1967, the Veteran's enlistment examination in February 1963, auditory thresholds showed the following: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 0 0 LEFT 15 5 5 10 5 On the Veteran’s separation examination in October 1966, auditory thresholds showed the following: HERTZ 500 1000 2000 3000 4000 RIGHT 30 20 20 20 15 LEFT 25 20 20 30 20 At separation, the pure tone thresholds showed a significant worsening shift for both ears, though neither the audiological examination upon entry to service nor the audiological examination at separation from service demonstrated bilateral hearing loss for VA purposes. The Veteran discussed this shift in his VA Form 9. The Veteran submitted two audiological examinations conducted by his private physician, Dr. R.S., an otolaryngologist. The first audiological examination was conducted in February 2006. The results of that examination showed bilateral hearing loss per 38 C.F.R. § 3.385, but Dr. R.S. did not opine as to the likelihood of the bilateral hearing loss being related to service. In May 2008, the Veteran was afforded a VA audiological examination for bilateral hearing loss. The results of that examination showed bilateral hearing loss per 38 C.F.R. § 3.385. The VA examiner opined that the Veteran’s bilateral hearing loss was not the direct result of military noise exposure. In May 2010, the Veteran was afforded a second VA audiological examination for bilateral hearing loss and the findings also showed that the Veteran has bilateral hearing loss for VA purposes. The VA examiner opined that the Veteran’s bilateral hearing loss was not at least as likely as not (less than 50 percent probability) caused by or a result of an event in military service. The VA examiner noted that hearing screens in military service revealed that the Veteran had normal hearing thresholds bilaterally. The VA examiner concluded that military noise exposure did not cause the Veteran’s bilateral hearing loss. After the July 2010 rating decision, the Veteran submitted a second audiological examination conducted by Dr. R.S., which was completed in March 2011. Dr. R.S. opined that the Veteran’s high frequency hearing loss is most likely due to noise exposure in the Air Force. There is no dispute in the record that the Veteran has a current diagnosis for bilateral hearing loss. On the Veteran’s May 2010 VA examination, auditory thresholds showed the following: HERTZ 500 1000 2000 3000 4000 RIGHT 0 10 25 65 75 LEFT 10 10 30 70 90 Additionally, in October 2009, the Veteran submitted a VA 21-4138, Statement in Support of Claim. The Veteran stated on the form that his wife told him, about a year of leaving the service, that he needed a hearing aid and that he needed to get his hearing checked. The Veteran has been consistent with that statement as he also stated in his May 2008 VA examination that his wife told him this. The Board recognizes that there are conflicting medical opinions as to the etiology of the Veteran’s bilateral hearing loss. As with all types of evidence, it is the Board's responsibility to weigh the conflicting medical evidence to reach a conclusion as to the ultimate grant of service connection. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board may favor the opinion of one competent medical expert over another if its statement of reasons and bases is adequate to support that decision. Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board decides, in the first instance, which of the competing medical opinions or examination reports is more probative of the medical question at issue. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008). The Board finds that the medical opinion from Dr. R.S., the Veteran’s private otolaryngologist, as well as lay statements from the Veteran and his wife, are persuasive. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). 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); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board acknowledges that the Veteran is competent to report that he experiences diminished hearing. Accordingly, the Board finds the Veteran's account of experiencing in-service noise trauma and auditory symptomatology to be credible and consistent with the circumstances of his service. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Additionally, the Board finds the Veteran to be credible in his report of having auditory symptomatology since service. Thus, there is competent and credible lay evidence of record that hearing loss occurred following acoustic trauma during active service and has continued to progress since that time. After careful consideration of all the evidence, and particularly the evidence with respect to causal nexus, the Board notes that several physicians examined the Veteran and considered his history. The medical opinions in the claims file are equally competent, and neither outweighs the other with regard to probative value. This places the evidence with respect to causal nexus in a state of relative equipoise. As such, reasonable doubt must be resolved in the Veteran’s favor. Accordingly, the Board finds that the evidence is at least in equipoise that the Veteran’s current bilateral hearing loss was due to his military noise exposure. Therefore, resolving all reasonable doubt in favor of the Veteran, his claim for service connection for bilateral hearing loss is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Mahaffey, Associate Counsel