Citation Nr: 18155434 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 15-13 981 DATE: December 4, 2018 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his bilateral hearing loss is due 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, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from October 1973 to July 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. The Board notes that the issue of entitlement to service connection for tinnitus was also denied in the March 2014 rating decision currently on appeal. However, entitlement to service connection for tinnitus was granted in a March 2015 rating decision, which is considered a full grant of the claim on appeal. As such, this issue is not currently before the Board. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In general, service connection requires the following: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Where a Veteran served for at least 90 days during a period of war or after December 31, 1964, and manifests certain chronic diseases, including organic diseases of the nervous system, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA’s Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system, and therefore a presumptive disability. The Board notes that in Fountain v. McDonald, 27 Vet. App. 258 (2015), the United States Court of Appeals for Veterans Claims determined that tinnitus is an “organic disease of the nervous system” subject to presumptive service connection where there is evidence of acoustic trauma and nerve damage. Alternatively, when a disease under 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). However, the use of continuity of symptomology to establish service connection is limited only to those diseases listed under 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, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Here, the Veteran claims that he is entitled to service connection for bilateral hearing loss due to his in-service noise exposure. The Board notes that a March 2014 VA audiological examination reflects bilateral hearing loss for VA purposes. See 38 C.F.R. § 3.385. As such, a current disability for the claim on appeal has been established. Regarding an in-service incurrence of an event of injury, the Board notes that the Veteran’s military occupational specialty in service was a fire control technician, and that he performed missile testing. The Veteran reported that he was exposed to loud hydraulic mechanical noise daily in service. Accordingly, the Board acknowledges in-service noise exposure. Further, while the Board notes that the Veteran’s hearing in his left ear was noted to be worse than the hearing in his right ear in his entrance examination, he was not noted to have hearing loss upon entrance. Further, his service treatment records reflect a January 1975 notation indicating that the Veteran did not have a history of hearing problems. The Veteran was provided a VA audiological examination in March 2014, where he was provided a diagnosis of bilateral sensorineural hearing loss. The VA examiner opined that it was less likely than not that the Veteran’s bilateral sensorineural hearing loss was caused by or a result of an event in service. The examiner reasoned that there was no evidence of hearing loss until 2011. The Board notes that this VA examiner explicitly did not consider the Veteran’s reported hearing loss during service, but rather only considered the objective medical evidence of record. As such, the Board affords this medical opinion little probative weight. Also of record are private medical treatment records, which reflect the Veteran in December 2011 having a diagnosis of bilateral hearing loss. The Veteran reported at the time that his hearing loss developed during service and worsened throughout the years. Further, a June 2015 letter from the Veteran’s private physician opined with a very high degree of medical certainty that his military-related noise exposure directly caused his hearing loss symptomology. The private physician also indicated that there was no indication that the Veteran experienced significant noise exposure post-service. This was also confirmed by a March 2014 letter from the Veteran’s employer, which indicated minimal noise exposure at his place of employment. Also of record are lay statements from the Veteran, his family, friends, and co-workers regarding his current hearing loss disability. Specifically, statements from the Veteran’s parents and younger sister indicate that he did not experience hearing problems prior to service, but upon his separation, they noticed him having difficulty hearing, which worsened over the years. The Board finds the evidence is at least in relative equipoise as to whether the Veteran’s bilateral hearing loss is related to service. Although the March 2014 VA audiologist provided a negative nexus opinion, as was previously noted, the Board does not afford this opinion significant probative weight, as the examiner did not take the Veteran’s lay statements into consideration. Further, the positive nexus opinion provided by the Veteran’s private physician, as well as the numerous lay statements of record, weigh in the Veteran’s favor. (Continued on the next page)   Accordingly, as the reasonable doubt created by the relative equipoise in the evidence must be resolved in favor of the Veteran, the Board finds that entitlement to service connection for bilateral hearing loss is warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Angeline DeChiara, Associate Counsel