Citation Nr: 18148257 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 12-17 823 DATE: November 7, 2018 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT The evidence is at least in relative equipoise that the Veteran’s current bilateral hearing loss disability was caused by service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. 3.102, 3.303, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 1968 to May 1970. This case comes on appeal of an August 2010 rating decision. The Veteran testified at a Board hearing in July 2013, however due to technical problems, a transcript of that hearing was unable to be produced. The Veteran was offered the opportunity to testify at a new hearing but elected to proceed on the basis of the record. This case was previously before the Board in June 2014. At that time the Board found the VA medical opinion of record to be inadequate and remanded the claim for an updated opinion, as well as to instruct the AOJ to attempt to obtain relevant medical records from the Veteran’s post-service employment. The Board notes that this appeal stream included a claim of entitlement to service connection for tinnitus. By a June 2016 rating decision, the AOJ granted service connection for tinnitus, effective the date of the claim. The Board also notes that in June 2016 the Veteran perfected an appeal for entitlement to service connection for ischemic heart disease. That issue has been certified to the Board, but is still pending a travel board hearing as requested by the Veteran and is not ready for review. The Board also recognizes that the Veteran’s attorney has submitted additional evidence for review by VA, and has asked that the Board remand the appeal so that the agency of original jurisdiction (AOJ) can consider the new evidence in the first instance. As the Board can grant the benefit sought in full herein, there is no prejudice to the Veteran in proceeding without AOJ initial consideration. Entitlement to service connection for a bilateral hearing loss disability Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303, 3.304. Service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Walker v. Shinseki, 701 F.3d 1331 (Fed. Cir. 2013). For chronic diseases listed in 38 C.F.R. § 3.309(a), including organic diseases of the nervous system, the nexus element of service connection may also be established by demonstrating continuity of symptoms since service. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed.Cir.2013). 38 C.F.R. § 3.307(a)(3) provides for presumptive service connection for chronic diseases that become manifest to a degree of 10 percent or more within 1 year from the date of separation from service. Sensorineural hearing loss may be considered an organic disease of the nervous system for the purposes of 38 C.F.R. § 3.309(a). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). The Veteran first filed a claim of entitlement to service connection for bilateral hearing loss in April 2010. For the 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 is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. At a July 2010 VA examination, the Veteran was shown to have a hearing loss disability for VA purposes, satisfying the first requirement of service connection. The Veteran contends that hearing loss was caused by in-service noise exposure. His military occupational specialty (MOS) of combat engineer reflects a high probability of noise exposure. The Veteran has indicated he was an explosives and demolition specialist and, at one point, served on temporary duty to train West Point cadets in this specialty. This testimony was corroborated by a fellow servicemember, W.F., who served with the Veteran during this time. Furthermore, service connection for tinnitus has been established based in part on the Veteran’s in-service acoustic trauma. The remaining question, therefore, is whether the Veteran’s current bilateral hearing loss disability is causally related to his in-service noise exposure. The Veteran’s examination upon separation from service does not document hearing loss for VA purposes, however on the self-assessment for that examination, the Veteran did check a box indicating that he had problems with his ears, nose, or throat. The notation was not addressed on the examination, though the Veteran has since stated that this he checked the box because of a numbness in his ears and difficulty hearing. The Veteran has testified that after service, in 1980, he underwent a hearing examination for employment purposes that documented hearing loss. Although attempts to obtain records of this test were futile because the employer no longer had employee records going back to 1980, the Board notes that the Veteran is competent to testify to examination results as explained to him by his doctor. The Veteran’s narrative, therefore, is that his in-service noise exposure caused difficulty hearing that continued to develop after service, was documented 10 years later—at age 30—and worsened to the point of a severe hearing loss disability in the present day. There are numerous medical opinions of record regarding whether the Veteran’s current hearing loss disability was caused by service. Opinions from VA medical examiners and an independent VA medical opinion obtained in September 2017 all provide negative nexus opinions based on the contention that, medically, there is insufficient evidence to support the theory of delayed onset of hearing loss due to acoustic trauma. A private medical opinion from Dr. A.H., obtained by the Veteran’s attorney in August 2018 provides a positive nexus opinion based on the theory that the Veteran’s in-service noise exposure was likely to have resulted in damage to outer hair cells in the cochlea. According to Dr. A.H., cochlear hair cell damage is a well-known cause of premature hearing loss and that auditory threshold decline due to noise-induced cochlear neuropathy may at times present in a delayed fashion on subsequent audiograms. The medical opinions in this case, therefore, present two competing medical theories. The medical theory promoted by the private examiner supports a positive nexus, while the medical theory promoted by the VA examiners is against a positive nexus. Neither the private opinion or the VA opinions address the opposing medical theories. On the evidence presented in this case, the Board finds neither theory to be more probative than the other and, as a result, deems the evidence of record to be in relative equipoise. Resolving all reasonable doubt in the Veteran’s favor, based on a finding of equipoise, the claim of entitlement to service connection for bilateral hearing loss is granted. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Giaquinto, Associate Counsel