Citation Nr: 18149637 Decision Date: 11/13/18 Archive Date: 11/13/18 DOCKET NO. 16-26 845 DATE: November 13, 2018 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran’s bilateral hearing loss is related to in-service noise exposure. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, a bilateral hearing loss disability was incurred in service. 38 U.S.C. §§ 1110, 1154(b), 5107(b); 38 C.F.R. §§ 3.303, 3.304(d), 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1967 to September 1969. This case comes before the Board of Veterans’ Appeals (Board) on appeal of an December 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky which among other things denied service connection for bilateral hearing loss. In February 2016 the Veteran submitted his notice of disagreement with the denial of service connection for bilateral hearing loss, was issued a statement of the case in April 2016, and in June 2016 perfected his appeal to the Board. On October 23, 2018 the Veteran appeared at a videoconference Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has not yet been associated with the claims file, but is not necessary for a decision on the claim. Entitlement to service connection for bilateral hearing loss The Veteran contends that he has had hearing loss since service which was caused by exposure to loud noises. He notes 3 times where he experienced temporary hearing loss in service and stated that slight hearing loss was noted on his separation examination when compared to his entrance examination. The Veteran explained that there were no records of his temporary hearing loss experiences as they occurred during combat and therefore he had no access to physicians. As explained below, such a contention is consistent with VA laws and regulations relating to combat. Service connection will be granted if the evidence demonstrates that current disability resulted from a disease or injury incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A hearing loss disability is defined for VA compensation purposes with regard to audiological testing involving pure tone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385. For purposes of applying the laws administered by VA, impaired hearing will be considered a disability 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 (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. The Veteran’s DD214 indicates that his military occupational specialty was light weapons infantry, and that received multiple medals indicative of combat service, including the Combat Infantryman Badge, Purple Heart, and Gallantry Cross with Silver Star. See VA Adjudication Procedures Manual, IV.ii.1.D.1.e (updated March 31, 2017) (list of Decorations that are evidence of combat participation). When a veteran has engaged in combat with the enemy, satisfactory lay or other evidence “shall be accepted as sufficient proof of service connection” for certain diseases or injuries, even if “there is no official record of such incurrence or aggravation in such service.” 38 U.S.C. § 1154 (b). This statute does not eliminate the need for evidence of a nexus; it merely reduces, for veterans who have engaged in combat with the enemy, the burden of presenting evidence of incurrence or aggravation of an injury or disease in service. Collette v. Brown, 82 F.3d 389, 392 (Fed.Cir.1996) (“Section 1154(b) does not create a statutory presumption that a combat veteran’s alleged disease or injury is service-connected”). Acoustic trauma due to combat has been accepted as satisfying the in-service disease or injury element of claims for service-connected hearing loss. See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012); Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The Veteran stated that he was exposed to an incoming 105MM howitzer artillery round which landed approximately 10 feet from his foxhole while in service; explosive noise resulting in concussion like symptoms, loss of hearing and ringing in the ears; and noise from a tank cannon and 50 CAL Machine gun blast. There is no evidence in the record that shows the Veteran lacks credibility. Based on the Veteran’s statements of exposure to acoustic trauma while in service in Vietnam, and by applying 38 U.S.C. § 1154(b), the Board concludes that the Veteran sustained acoustic trauma during combat operations. The Veteran’s service treatment records do not note any issues or complaints concerning his hearing, but note an ear infection in September 1967. His June 1969 medical history report upon discharge does not indicate that the Veteran had any issues with his ears or hearing, and his June 1969 medical examination report upon discharge was normal and pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 X 15 LEFT 15 15 Illegible X Illegible A private audiological examination in October 2012 noted pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 45 55 X 70 LEFT 40 50 60 X 70 Speech audiometry revealed speech discrimination at 45 dB of 52 percent and 68 percent when the test was repeated in the right ear and of 80 percent in the left ear. The examiner diagnosed mild to moderate sensorineural hearing loss in the left ear, and mild to severe sensorineural hearing loss in the right ear. The Veteran was afforded a VA examination in December 2015. The Veteran stated that he has difficulty understanding conversation when he is not facing the speaker. He reported exposure to weapons fire and explosions in service without hearing protection and denied occupational noise exposure prior to his military service. He also stated he worked in road construction and as a state policeman following service, but wore hearing protection during weapons training. The Veteran denied recreational noise exposure, a family history of hearing problems and head trauma. Pure tone thresholds in decibels were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 40 50 55 70 LEFT 40 40 50 60 60 Speech recognition scores utilizing the Maryland CNC word list were 92 percent for both the left and right ears. The audiologist noted bilateral high frequency sensorineural hearing loss, thus the Veteran has met the current disability requirement for his claim, but the audiologist opined that his hearing loss was not caused by or is not related to in-service noise exposure, noting that the Veteran’s hearing was normal at enlistment and separation. In a February 2016 addendum opinion, the audiologist added that in addition to service treatment records reporting normal hearing thresholds at the time of entrance into service as well as upon discharge, the Veteran had a history of occupational noise exposure following service, therefore his hearing loss was not caused by or related to in-service noise exposure. The Veteran was afforded an additional VA examination in June 2018. The Veteran stated that he believes his hearing is getting progressively worse and that he cannot understand what is said on the telephone or on the television. Pure tone thresholds in decibels were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 55 65 65 80 LEFT 50 55 60 60 75 Speech recognition scores utilizing the Maryland CNC word list were 72 percent for the right ear and 88 percent for the left ear. The audiologist opined that the Veteran’s hearing gloss was not at least as likely as not caused by or a result of an event in military service. The audiologist stated that hearing test results were normal upon entrance and separation from service with no significant positive threshold shifts. An August 2018 medical opinion indicated the Veteran has significant hearing loss and that it is hard to say that it did not have anything to do with extreme noise exposure at a young age. The medical professional opined “although the hearing test administered at discharge did not show hearing decline, it is fairly well established that hearing loss can take years to show up after significant noise exposure on a chronic basis.” For the following reasons, the evidence is at least evenly balanced as to whether the Veteran’s current bilateral hearing loss disability is related to in-service noise exposure. While the December 2015 and June 2018 audiologists opined that the Veteran’s bilateral hearing loss was not caused by or related to in-service noise exposure, they based their opinions on the fact that the Veteran’s hearing was normal at separation. This opinion is flawed as normal hearing upon separation is not necessarily fatal to a claim for service connection for hearing loss disability, and is thus afforded no probative weight. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993). This contention that the opinions are flawed is also supported by the indication in the August 2018 private medical opinion that hearing loss can take many years after noise exposure to manifest. Moreover, the fact that the claimed cause of the Veteran’s hearing loss, i.e., acoustic trauma from exposure to weapons firing during combat service, is established by his statements does not prevent the Veteran from also invoking the section 1154(b) rules to show that he incurred the disability itself while in service. Reeves, 682 F.3d at 999. Given the application of 38 U.S.C. § 1154 (b) as explained in Reeves, the Veteran’s lay testimony as to hearing loss in and since service along with the other evidence including the August 2018 private medical opinion above provides a sufficient basis to conclude that the Veteran’s bilateral hearing loss is related to the acoustic trauma he sustained in service. As the reasonable doubt created by the relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for bilateral hearing loss is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Maddox, Associate Counsel