Citation Nr: 18156263 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 15-27 529A DATE: December 7, 2018 ORDER Service connection for bilateral sensorineural hearing loss disability is granted. FINDINGS OF FACT 1. The Veteran’s in-service exposure to significant acoustic trauma during combat service is presumed. 2. The evidence is at least evenly balanced as to whether the Veteran’s bilateral sensorineural hearing loss disability is related to in-service noise exposure. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, bilateral sensorineural hearing loss was incurred in service. 38 U.S.C. §§ 1110, 1154(b), 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1967 to November 1969, including service in the Republic of Vietnam. The Veteran’s service decorations include the Combat Infantryman Badge, Purple Heart, and three Bronze Stars. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision dated August 2014 of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Board recharacterized the Veteran’s initial claim for service connection for right ear hearing loss to encompass bilateral hearing loss, as reflected on the title page of this decision. The U.S. Court of Appeals for Veterans Claims has held that the Board must broadly construe claims, and consider other diagnoses for service connection when the medical record so reflects. Clemons v. Shinseki, 23 Vet. App. 1 (2009). As the record reflects that the Veteran was exposed to acoustic trauma during service, and that he is currently diagnosed with bilateral sensorineural hearing loss, the Veteran’s claim is accordingly construed as entitlement to service connection for bilateral hearing loss. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by 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) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Consistent with this framework, service connection is warranted for a disease first 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). 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”). Hearing loss is considered to be a disability for VA purposes 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 these frequencies are 26 decibels or greater; or when speech recognition thresholds using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, certain disabilities require specialized training and medical diagnostic testing for a determination as to diagnosis and causation, and therefore fall outside the realm of common knowledge of a lay person. Id. at 1377 n. 4. Generally, the degree of probative value which may be attributed to a medical opinion of record takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Also significant is whether the examiner had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Analysis The Veteran asserts that his currently diagnosed hearing loss is related to service. In particular, he asserts that his hearing loss incurred in service as a result of acoustic trauma that included artillery fire, machine guns and rifles, and mortar shell explosions, and that his hearing loss started during service and has continued since his separation from service. See Notice of Disagreement received September 26, 2014; Appeal to Board of Veterans’ Appeals (VA Form 9) received August 31, 2015; Statement of Accredited Representative in Appealed Case dated January 31, 2017. The Board finds that the Veteran has a bilateral hearing loss disability that meets the VA regulatory criteria set forth under 38 C.F.R. § 3.385. An August 4, 2014 VA audiometric examination report shows puretone thresholds of 40 dB or greater at 4000 Hz in both ears. Based on this evidence, a current disability of bilateral hearing loss is established. The Veteran asserts that his hearing loss was caused by acoustic trauma in service, specifically noise from artillery, machine gun and rifle fire, and the explosion of mortar shells. See Notice of Disagreement received September 26, 2014; Appeal to Board of Veterans’ Appeals (VA Form 9) received August 31, 2015. In this regard, there is no medical evidence in the service treatment records of hearing loss during service or for many years thereafter. However, the Veteran’s DD Form 214 shows that his Military Occupation Specialty (MOS) was Light Weapons Infantryman, and that he received the Combat Infantryman Badge, Purple Heart, and Bronze Stars during service. Thus, the evidence demonstrates that the Veteran engaged in combat with the enemy. See 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). Such acoustic trauma due to combat and other noise exposure has been accepted as satisfying the in-service disease or injury element of claims for hearing loss. See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012); Hensley v. Brown, 5 Vet. App. 155, 160 (1993). Based on the foregoing, and by applying 38 U.S.C. § 1154(b), the Board finds that the Veteran has satisfied the in-service injury element of his claim. The remaining issue is thus whether the current hearing loss is related to the in-service acoustic trauma. The fact that the claimed cause of the Veteran’s hearing loss, i.e., acoustic trauma from artillery, gunfire, and mortar explosions in service, has been established by his statements does not prevent him from also invoking the provisions of 38 U.S.C. § 1154(b) in order to show that he incurred the disabilities themselves while in service. See Reeves, 682 F.3d at 999. The Board finds that, given the application of Section 1154(b) as explained in Reeves, the Veteran’s lay statements along with the other evidence above provides a sufficient basis to conclude that his current hearing loss is related to the acoustic trauma he suffered during combat service. The Board notes that the Veteran underwent a VA examination in August 2014, in which the VA examiner diagnosed the Veteran with bilateral sensorineural hearing loss, and acknowledged the Veteran’s exposure to acoustic trauma during service from artillery, gunfire, and mortar explosions. Nevertheless, the examiner opined that the Veteran’s hearing loss was less likely as not caused by or as a result of his military noise exposure. The examiner’s opinion accorded great weight to the fact that the Veteran had normal hearing upon separation from service, and it is therefore flawed because normal hearing upon separation is not necessarily fatal to a claim for service connection for hearing loss. See Hensley, supra; 38 C.F.R. § 3.303(d). The examiner may not provide a negative opinion based solely on the absence of hearing loss during service. In addition, the VA examiner did not address the Veteran’s competent lay statements of having had continuing hearing difficulty that started during service. Based on this body of evidence, the evidence is at least evenly balanced as to whether the Veteran’s current bilateral hearing loss is related to his military service. As any reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for bilateral hearing loss is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Brad Farrell, Associate Counsel