Citation Nr: 18148726 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 14-00 229 DATE: November 8, 2018 ORDER Service connection for bilateral hearing loss is granted. FINDING OF FACT The Veteran’s bilateral hearing loss for VA purposes has been shown to be the result of noise exposure during military service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 1154(a); 38 C.F.R. §§ 3.303, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty military service from January 1969 to December 1970. This matter comes before the Board of Veterans’ Appeals (Board) from a September 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied service connection for bilateral hearing loss. The Veteran and his daughter testified before the undersigned Veterans Law Judge (VLJ) in February 2016. A copy of the hearing transcript has been reviewed and associated with the claims file. This matter was before the Board in November 2016, at which time it was remanded for additional evidentiary development. While the matter was in remand status, in an April 2017 rating decision, the RO granted service connection for other specified trauma and other stressor related disorder, with depressive features. The grant of service connection constitutes a full award of the benefits sought on appeal with respect to the claim of service connection for an acquired psychiatric disability. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). The Veteran did not initiate an appeal with the initial rating or effective date assigned for his acquired psychiatric disability within one year of the April 2017 rating decision and notification letter. Grantham, 114 F. 3d at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of “downstream” elements such as the disability rating or effective date assigned). Thus, this issue is not before the Board at this juncture. Entitlement to service connection for bilateral hearing loss Service connection will be granted for a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires evidence of (1) a current disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where the Veteran asserts entitlement to a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service, but an award solely on this basis is only permissible if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). Hensley v. Brown, 5 Vet. App. 155, 159 (1993). For the purposes of applying laws administered by VA, the thresholds for normal hearing are between 0 and 20 decibels, and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hz 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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). The Veteran asserts that his bilateral hearing loss is the result of noise exposure incurred during military service. The evidence shows a current bilateral hearing loss disability for VA purposes. See 08/13/2012, VA Examination. Accordingly, a present disability has been established by the evidence. A review of the Veteran’s DD-Form 214 indicates that his military occupational specialty (MOS) was a project equipment repairman. He testified at the hearing and indicated that he was an infantryman in Vietnam and exposed to weapon fire without hearing protection. He has been service-connected for tinnitus based on his in-service noise exposure. Accordingly, in-service noise exposure has been established as consistent with the types, places, and circumstances of the Veteran’s active service. 38 U.S.C. § 1154(a). Having established a current disability and conceded in-service noise exposure, the remaining question is whether the Veteran’s bilateral hearing loss is due to his noise exposure during his active military service. The Veteran complained of longstanding hearing loss and indicated that his hearing loss began in December 1970. See 09/26/2011, VA 21-526 Veterans Application for Compensation or Pension, p. 1. His daughter testified at the hearing in February 2016 and noted that she was forty-three years of age at that time and has noticed her father’s hearing loss all of her life. An audiological examination was performed during the Veteran’s entrance examination in May 1968, which revealed the pure tone thresholds in decibels as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 10 10 LEFT 15 10 10 10 10 During the December 8, 1970, separation examination, the pure tone thresholds were revealed as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 20 DNT 15 LEFT 25 20 20 DNT 15 The Board notes that it is presumed that the American Standards Association (ASA) standard was used when recording the auditory thresholds prior to January 1, 1967. However, between January 1, 1967, and December 31, 1970, it is unclear whether such auditory thresholds were recorded using ASA units or International Standards Organization-American National Standards Institute (ISO-ANSI) units. Accordingly, the Board converted the Veteran’s May 1968 and December 8, 1970, audiological examinations to ISO-ANSI units by adding between 5 and 15 decibels to the recorded data, which is considered more favorable in the present case. (Note that the December 1970 examination did not test for 3000 Hz.) A VA examination was performed in August 2012 and an addendum opinion was issued in December 2016, at which time the examiner concluded that the Veteran’s hearing loss was not related to service. The examiner reasoned that the separation hearing examination was within normal limits at all test frequencies and did not reveal a significant threshold shift when comparing to the entrance examination. Furthermore, the examiner indicated that when noise exposure has been terminated, it does not affect hearing years later. After a review of the evidence, the Board finds that service connection for bilateral hearing loss is warranted. In this regard, the December 1970 audiological examination revealed some degree of clinical hearing loss at the 500 Hz level. See Hensley, 5 Vet. App. at 157 (holding some degree of hearing loss is shown when the thresholds are above 20 decibels). Furthermore, the Veteran confirmed that he had longstanding hearing loss, which began in December 1970. Lastly, his forty-three- year-old daughter testified at the hearing in 2016 and indicated that she has remembered her father having hearing loss all of her life. The Board acknowledges the negative opinion provided by the August 2012 examiner. However, the Board gives little weight to this opinion. In this regard, the examiner concluded that the Veteran’s hearing loss was not related to service because his separation examination was normal. However, the examiner failed to acknowledge the fact that the December 1970 audiological examination revealed some degree of hearing loss. Furthermore, the examiner failed to acknowledge the Veteran and his daughter’s lay statements of longstanding hearing loss and failed to discuss how his tinnitus was related to service but not his bilateral hearing loss. Given that the Veteran and his daughter confirmed longstanding hearing loss, and the fact that sensorineural hearing loss (organic disease of the nervous system) is a chronic disease under 38 C.F.R. § 3.309(a), an award of service connection is appropriate solely based on evidence of continuity of symptomatology. Walker, 708 F.3d at 1336-40. (Continued on the next page)   In view of the foregoing, the Board finds that the evidence is at least in equipoise regarding the question of whether the Veteran’s current bilateral hearing loss is the result of military service. In cases where the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Hurley, Associate Counsel