Citation Nr: 18154430 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 17-00 698 DATE: November 29, 2018 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT The evidence of record supports a finding of a nexus between an in-service event and the Veteran's current diagnosis of bilateral hearing loss. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served the United States Army from October 1967 to February 1968 and from May 1968 to September 1969. This matter comes to the Board of Veterans' Appeals (Board) from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in White River Junction, Vermont. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d) (2017). Service connection may be granted for an organic disease of the nervous system, such as a sensorineural hearing loss, when it is manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). Sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 C.F.R. 3.309 (a). The requirement for a current disability requirement to establish service connection is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowski v. Shinseki, 26 Vet. App. 289, 294 (2013). Applicable regulations provide that impaired hearing shall be considered a disability when the auditory thresholds in any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hz are 40 decibels or greater; the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores are 94 percent or less. 38 C.F.R. § 3.385 (2017). 38 C.F.R § 3.385 does not preclude service connection for a current hearing loss disability where the Veteran’s hearing was within normal limits on audiometric testing at separation from service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Rather, when audiometric test results at a veteran's separation from service do not meet the requirements of 38 C.F.R. § 3.385, a veteran may nevertheless establish service connection for current hearing disability by submitting medical evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). Where the requirements for hearing loss disability pursuant to 38 C.F.R. § 3.385 are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post-service test results meeting the criteria of 38 C.F.R. § 3.385. Hensley, 5 Vet. App at 155. If the record shows (a) acoustic trauma due to significant noise exposure in active service and audiometric test results reflect an upward shift in tested thresholds while in such service, though still not meeting the requirements for "disability" under 38 C.F.R. § 3.385 , and (b) post service audiometric testing produces findings which meet the requirements of 38 C.F.R. § 3.385; then the rating authorities must consider whether there is a medically sound basis to attribute the post service findings to the injury in service, or whether these findings are more properly attributable to intervening causes. Id. at 159. After considering all information and lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Entitlement to service connection for bilateral hearing loss The Veteran contends that his service as a construction machine operator and the resulting exposure to acoustic trauma caused his current hearing loss. Because there is no indication that the Veteran's hearing loss was manifested within one year of service, service connection is not available on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309. The first element is satisfied, in that the for both ears the March 2016 and May 2018 VA examinations indicate auditory thresholds of 40 decibels or greater at frequencies of 500, 1000, 2000, 3000, and 4000 Hz. The second element is satisfied, the in-service injury or disease, the Board notes that the record contains sufficient evidence that the Veteran's active service exposed him to acoustic trauma. Moreover, the Veteran's DD-214 confirms his service as a construction machine operator, and the RO acknowledged the Veteran’s exposure to high noise levels while he was in service. As to the final element of a service connection claim, the nexus between the Veteran's hearing loss disability and the in-service noise exposure, the evidence is mixed, and the Veteran admits that he did not seek medical treatment while in the military. The Veteran is competent to provide statements to establish the occurrence of medical symptoms. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). However, the Veteran is not medically qualified to prove a matter requiring medical expertise. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992). Thus, while the Veteran's statements that he had trouble hearing for years after he was in active service are both competent and credible, his statements alone are not sufficient to medically attribute his current hearing loss to the acoustic trauma he experienced in service. Two VA examinations have been provided, in March 2016 and May 2018, and both provided negative nexus opinions. Both examiners provided similar opinions stating that the Veteran's hearing loss was not caused by or the result of military acoustic trauma, mainly since the Veteran’s separation exam did not show a hearing disability, both examiners were persuaded by the fact that the Veteran had entered and exited service with normal bilateral hearing. While both VA examinations have similar conclusions, the March 2016 examination is more detailed and complete, therefore it should be afforded more probative weight than the May 2018 examination. In fact, the May 2018 examination does not address any of the Veteran’s lay statements and is only of use in order to confirm the Veteran’s current disability. The March 2016 examiner, in providing her rationale for the negative nexus opinion, noted that there was no evidence of a hearing disability or issue until 2009, more than 40 years after service. The March 2016 VA examiner also considered the Veteran’s occupational history of noise exposure after service as the more likely cause of the Veteran’s current hearing loss disability. However, the examiner did acknowledge the Veteran’s exposure to military acoustic trauma through the noise produced by grenades, M-16, M-14, M-60, 50 Cal, rock crusher, landmines on course, and heavy equipment. According to the report, the examiner further notes the Veteran’s statements regarding the use of hearing protection during his civilian employment; however, she still concluded that this exposure was the more likely cause of the Veteran’s disability. Notwithstanding the March 2016 examiner ultimate conclusion, it is apparent to the Board that the examiner did not appreciate the fact that she did not have to choose either a post-service cause or an in-service cause, and could have instead determined that each contributed to the Veteran’s current hearing loss. In fact, based on the rationale provided, this opinion would have been more consistent with that rationale. Thus, the examiner did not adequately consider the Veteran's lay statements of the in-service noise exposure and the continuity of symptoms. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (finding a medical examination inadequate where the examiner impermissibly ignored the appellant's lay assertions regarding onset of symptoms or injury during service). Moreover, even if disabling loss is not demonstrated at separation, a veteran may establish service connection for a current hearing disability by submitting evidence that a current disability is causally related to service, and the opinion is found to support the proposition that the Veteran’s current hearing disability is at least in part related to service. Hensley, 5 Vet. App at 160. Furthermore, lay evidence concerning continuity of symptoms after service, if credible, can ultimately be considered competent, regardless of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Where, as here, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Consequently, the Board finds that service connection of the Veteran’s bilateral hearing loss is warranted. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. R. Montalvo, Associate Counsel