Citation Nr: 18157425 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 16-50 889 DATE: December 12, 2018 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDINGS OF FACT 1. The Veteran has a current diagnosis of bilateral hearing loss. 2. The probative evidence of record establishes that the Veteran’s bilateral hearing loss is caused by, or related to, his active duty. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1970 to August 1974. This matter is before the Board of Veteran’s Appeals (Board) on appeal from an August 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012). Generally, the evidence 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 between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection. 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 within one year at separation. 38 C.F.R. § 3.303(d). For the purposes of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of those frequencies 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. It has been established that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a medical relationship between the Veteran’s in-service exposure to loud noise and current disability. See Hensley v. Brown, 5 Vet. App. 155 (1993). The Board notes that the directives in Hensley are consistent with 38 C.F.R. § 3.303(d). Finally, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). When 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. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 1. Entitlement to service connection for bilateral hearing loss According to the service treatment records, the Veteran underwent pre-induction and separation examinations in September 1970 and January 1974, respectively. Those examinations did not reflect hearing loss for VA purposes. In May 2015 the Veteran submitted a claim for hearing loss, which he attributed to his service as a weapons control system mechanic while stationed in Germany. A VA evaluation took place in July 2015 to evaluate the Veteran’s claimed bilateral hearing loss. The examiner did not examine the Veteran or conduct audiometric testing but rather conducted a telephone interview. The examiner noted that the Veteran’s military occupation specialty has a high probability of hazardous noise exposure, as did his post-service occupation as a farmer. The examiner reviewed two in-service hearing tests and found that both tests showed the Veteran had normal hearing bilaterally. The examiner also noted there were no significant shifts in hearing thresholds between his 1973 and 1974 audiometric examinations. The examiner opined that it is less likely than not that the Veteran’s hearing loss is the result of military noise exposure. In December 2015, the Veteran’s private clinical audiologist conducted an audiological examination. The audiologist diagnosed the Veteran with bilateral sensorineural hearing loss. During this examination, the Veteran reported exposure to jet noise while performing inspections to F-4 aircraft while the engines were engaged. During these inspections, the Veteran stated that he was unable to always use double hearing protection because his head could not clear the small openings that were required for access when wearing hearing protection. The audiologist opined that prolonged exposure to jet engine noise without proper hearing protection would be harmful to a person’s hearing level. After a review of the Veteran’s claims file, his current medical condition, and the results of the audiometric testing, the audiologist concluded it was at least as likely as not that the Veteran’s bilateral hearing loss is related to his military service. The audiologist based her opinion on the Veteran’s report of significant noise exposure during his enlistment, a positive threshold shift of 10 decibels in his in-service audiograms, and a lack of harmful noise exposure in his post-military occupation. A VA examination took place in July 2016 to evaluate the Veteran’s claimed hearing loss. The examiner diagnosed the Veteran with bilateral sensorineural hearing loss, which she attributed to the Veteran’s history of temporal lobe stroke, which caused severe aphasia, and his post-service occupation as a farmer. Upon review of the record, the Board finds that the preponderance of the competent and credible evidence establishes that the Veteran’s currently diagnosed bilateral hearing loss is related to his service. The Board finds that the Veteran is competent and credible to testify to being exposed to loud noises without the benefit of proper ear protection and that he was, therefore, exposed to acoustic trauma in service. The Board further finds the December 2015 private audiologist’s opinion probative on the question of whether the Veteran’s in-service exposure to acoustic trauma led to his current hearing loss. The Board acknowledges that the record contains negative opinions from VA examiners regarding the etiology of the Veteran’s hearing loss. In weighing the probative value of the VA examiners’ opinions, however, the Board notes that they did not consider the Veteran’s competent and credible account of his in-service noise exposure and the lack of proper hearing protection. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). Therefore, the Board finds that the VA opinions are less probative than the December 2015 private opinion, which considered the Veteran’s lay statements regarding the circumstances of his in-service noise exposure and his current symptomatology. In sum, the Board finds that Veteran was exposed to noise in service and has a current diagnosis of bilateral hearing loss. The December 2015 private audiologist competently linked the Veteran’s current hearing loss to his in-service noise exposure. As discussed above, the Board finds this opinion to be more probative than the July 2015 and July 2016 VA examinations. Accordingly, reasonable doubt must be resolved in favor of the Veteran, and entitlement to service connection for bilateral hearing loss is warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Christopher W. King, Law Clerk