Citation Nr: 18154377 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 16-51 185 DATE: November 29, 2018 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT The most probative evidence of record shows the Veteran’s bilateral hearing loss is etiologically related to in-service noise exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.385 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1969 to February 1971, to include service in the Republic of Vietnam. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to service connection for bilateral hearing loss Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 247, 431 (2006). Service connection may be granted for any disease initially 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). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including other organic diseases of the nervous system (which includes sensorineural hearing loss and tinnitus), are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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, or 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. 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, 159 (1993). The Veteran contends that his current hearing loss owes to his service, specifically to noise exposure experienced while serving as a medic in the Republic of Vietnam. He has averred that he “was continually exposed to loud noises from helicopter engines as they would bring in wounded and dead soldiers…then [fly] off again to get more.” A review of the Veteran’s service records shows his statements concerning noise exposure are consistent with the nature of his service. Accordingly, the Board finds the Veteran’s statements credible with respect to hazardous noise exposure in service. The record also reflects significant current hearing loss. VA examinations in December 2009 and April 2018 reflect hearing loss in both ears as defined under the regulations summarized above. Service records show the Veteran had a degree of left ear hearing loss upon entrance into service, with normal hearing in the right ear. His separation examination shows a whisper test was performed; this type of testing has subsequently been shown to be unreliable. As explained by the April 2018 VA examiner, a whisper test “is not sensitive to high frequency hearing loss.” As such, the examiner concluded that an in-service threshold shift could not be ruled out in the Veteran’s case. Moreover, the December 2009 VA examiner, although furnishing a negative etiological opinion for hearing loss for both ears, indicated that the high frequency hearing loss shown on examination was “more indicative of noise exposure.” Considering the above evidence, along with the Veteran’s consistent and credible accounts of the nature of his service, the Board finds service connection is clearly warranted for right ear hearing loss. As for the left ear, the “presumption of soundness” doctrine set forth in 38 U.S.C. §§ 1111 and 1153 dictates that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. Clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service, and clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306 (b). Essentially, a lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 U.S.C. § 1153. VA’s Office of General Counsel has issued a precedent opinion holding that in order to rebut the presumption of soundness in 38 U.S.C. § 1111, VA must demonstrate by clear and unmistakable evidence both that the disease or injury in question existed prior to service and that it was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA’s duty under the second prong of this rebuttal standard attaches. Applying this doctrine to the facts at issue, the evidence can hardly be said to show clearly and unmistakably that left ear hearing loss was not aggravated by in-service noise exposure. As explained above, the Board has found the Veteran credible with respect to such exposure. Moreover, the testing conducted at separation is now understood to be unreliable. As such, there is no reliable evidence in the record to establish that the Veteran’s left ear hearing loss was not aggravated by in-service noise exposure. Hence, the Board finds that service connection for left ear hearing loss is warranted as well. In sum, the record contains credible statements concerning in-service hazardous noise exposure, significant current hearing loss, and no compelling evidence to controvert an etiological link. Resolving all reasonable doubt in the Veteran’s favor, the Board finds service connection for bilateral hearing loss is warranted. See Gilbert v. Derwinski, 1. Vet. App. 49 (1991). GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Z. Sahraie, Associate Counsel