Citation Nr: 18152284 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 16-61 023 DATE: November 21, 2018 ORDER Entitlement to service connection for bilateral hearing loss (BHL) due to noise exposure is granted. FINDING OF FACT The Veteran has a current diagnosis of BHL which has been continually present since his military service. CONCLUSION OF LAW The criteria for entitlement to service connection for BHL due to noise exposure have been met. 38 U.S.C. §§ 1131; 38 C.F.R. §§ 3.303, 3.304, 3.07, 3.309, 3.385, 4.85. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the Navy from May 1950 to February 1954. The Veteran has combat service in Korea. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to service connection for bilateral hearing loss due to noise exposure The Veteran contends that his BHL is the result of exposure to acoustic trauma while serving in the Navy. Generally, service connection may be established if the evidence demonstrates that a current disability resulted from a disease or injury incurred in or aggravated by active duty service. 38 C.F.R. § 3.303. To that end, service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to the period of service, establishes the disease was incurred during active duty service. 38 C.F.R § 3.303 (d). In order to prove service connection, there must be competent and credible evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the current disability and the in-service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as sensorineural hearing loss, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. 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. See 38 C.F.R. § 3.303 (b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purposes of applying the laws administered by VA, impaired hearing will be considered 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. The United States Court of Appeals for Veterans Claims (Court) has held that service connection can be granted for a hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for a hearing loss which first met VA’s definition of disability after service. Hensley, 5 Vet. App. at 159. As an initial matter, the Board finds that the Veteran’s contentions regarding his in-service noise exposure to be competent and credible. Specifically, in correspondence dated June 2013, the Veteran asserted that he was exposed to excessive noise aboard the USS Sicily and USS Merrick. The Veteran said that his gun station was just below the flight deck in the cat walk and the planes were extremely noisy. He added that he did not wear any hearing protection while serving in the Navy. In a June 2013 Statement in Support of Claim, the Veteran contended that he was exposed to noise trauma during action with the enemy. The Veteran’s military personnel records confirm his military occupational specialty (MOS) as a boatswain mate while serving aboard the USS Sicily. In addition, his personnel records confirm that he engaged in combat while serving in Korea and he was awarded a combat action medal ribbon among other medals. His MOS and combat duties are consistent with the Veteran’s claim of noise exposure. Therefore, the Board acknowledges that the Veteran was exposed to loud noise in service. The Board finds that the evidence of record shows that Veteran was exposed to acoustic trauma in-service and his symptoms of hearing loss continued after separating from service. The Veteran’s service treatment records are silent as to complaints of hearing loss. The Veteran’s May 1950 enlistment exam and February 1954 separation exam do not include any results of audiometric testing. The exams show that the Veteran scored a 15/15 on the whispered voice test; however, the Board notes that the whispered voice tests are inaccurate and unreliable. See Veterans Benefits Administration Training Letter 211D (10-02), dated March 18, 2010; Adjudication Procedure Manual M21-1 (M21-1), Part III, Subpart iv, Chapter 4, Section B, Subsection 4, Paragraph g. In the June 2013 Statement in Support of Claim, the Veteran asserted that his hearing loss started in service. The Veteran repeated the same assertions in an October 2018 Statement in Support of Claim. Further, upon returning from the service, he stated that his mother complained that he listened to the television too loudly and he had to ask people to repeat themselves. The Veteran concluded that he did not have problems with his hearing before joining the Navy. The Veteran’s representative also argued that the Veteran has been aware of hearing loss for many years and experienced difficulty with hearing immediately after his separation from the service. See Informal Hearing Presentation dated October 2018. The Veteran is competent to report such symptoms as decreased hearing acuity that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Medical records provided by the Veteran document audiological testing conducted in 2004, 2005, and 2012. The documentation shows that the Veteran’s hearing has progressively deteriorated. VA treatment records document an intake for chronic hearing loss and hearing aids in 2015. The Veteran had audiological testing conducted in May 2015 which showed mild to severe sensorineural hearing loss. The physician noted that the Veteran has a history of noise exposure both in the military and occupationally. In June 2015, the Veteran received hearing aids which improved his ability to hear. As to current findings of hearing loss, the Board finds that the Veteran has hearing loss for VA purposes. 38 C.F.R. § 3.385. The Veteran was afforded a VA audiological examination in August 2015. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 40 65 90 105 LEFT 30 40 75 85 85 Speech audiometry revealed speech recognition ability of 72 percent in the right ear and of 68 in the left ear. While the audiometric testing conducted in August 2015 shows a diagnosis of BHL, the examiner opined that the Veteran’s hearing loss was less likely than not related to his exposure to noise during service. The rationale provided for the opinion was that the Veteran’s severe hearing loss was more consistent with 37 years of occupational noise exposure as an iron worker. However, the Board gives minimal probative value to the VA examiner’s opinion as to hearing loss. The Court has held that the Board is free to assess medical evidence and is not compelled to accept a physician’s opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). The VA examiner rested his opinion solely on the Veteran’s post-service occupational noise exposure as an iron worker. However, in an October 2018 statement, the Veteran asserted that after separating from the Navy, he worked as an iron worker, but not in a mill. The Veteran stated that his workplace was not noisy and no heavy machinery was involved. The Veteran added that after working as an iron worker, he worked mixing liquid chemicals, which was not noisy either. Additionally, during the last 15 years of his career, the Veteran said he worked as a welder, which did not seem particularly noisy. The VA examiner did not consider the Veteran’s assertions regarding his post-service work environment when rendering his negative opinion. Also, the VA examiner failed to consider the Veteran’s contentions that his hearing loss began in service. See Barr v. Nicholson, 21 Vet. App. 303 (2007). In a June 2013 statement, the Veteran stated that his hearing loss started in service. The Veteran made in the same assertion in an October 2018 statement. Although there is a negative opinion of record, the Board finds the VA examiner’s opinion inadequate due to his failure to adequately represent the Veteran’s limited occupational noise exposure and failure to consider the Veteran’s lay contentions. In sum, the Veteran credibly contends that he incurred BHL during active service due to noise exposure as a boatswain mate and as a combat Veteran. The Board has conceded that the Veteran was likely exposed to acoustic trauma in-service. The record evidence also shows that the Veteran has a current condition of BHL sufficient for VA purposes. Additionally, the Board has found that the only medical opinion of record dated in August 2015 addressing the contended etiological relationship between bilateral hearing loss and active service to be not probative. Therefore, the Board presumes that the Veteran’s hearing loss was incurred in-service based on the continuity of reported symptoms of hearing loss. The Board concludes that service connection for bilateral hearing loss is warranted. 38 U.S.C. §§ 1131; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385, 4.85. Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Hartford, Associate Counsel