Citation Nr: 18157503 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 17-38 996 DATE: December 12, 2018 ORDER Service connection for bilateral hearing loss is granted. FINDING OF FACT The Veteran’s bilateral hearing loss for VA purposes has been shown to be the result of noise exposure during military service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1101, 1131, 1154(a); 38 C.F.R. §§ 3.303, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty military service from September 1960 to September 1962. This matter comes before the Board of Veterans’ Appeals (Board) from a rating decision issued in January 2017 by a Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied service connection for bilateral hearing loss. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in August 2017. A copy of the transcript has been reviewed and associated with the claims file. This matter was before the Board in November 2017, at which time it was remanded for additional evidentiary development, including obtaining an addendum medical opinion. Entitlement to service connection for bilateral hearing loss Service connection will be granted for a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). Where the Veteran asserts entitlement to a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service, but an award solely on this basis is only permissible if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). Hensley v. Brown, 5 Vet. App. 155, 159 (1993). For the purposes of applying laws administered by VA, the 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, 157 (1993). Impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hz 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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). In the present case, the Veteran asserts that his bilateral hearing loss is the result of noise exposure incurred during military service. The evidence shows a current bilateral hearing loss disability for VA purposes. See e.g., 12/29/2016, C&P Exam. Accordingly, a present disability has been established by the evidence. A review of the Veteran’s DD-Form 214 indicates that his military occupational specialty (MOS) was an armor crewman. He has been service-connected for tinnitus based on his in-service noise exposure. Accordingly, in-service noise exposure has been established as consistent with the types, places, and circumstances of the Veteran’s active service. 38 U.S.C. § 1154(a). Having established a current disability and conceded in-service noise exposure, the remaining question is whether the Veteran’s current bilateral hearing loss is due to his noise exposure during his active military service. The Veteran’s July 1960 whisper test findings were 15/15 in both ears. He did not undergo an audiometer test at that time. The Veteran’s audiometer results during the July 1962 examination were between 5 and 10 decibels at the frequencies of 500 through 4000 Hertz. The Veteran indicated that during service when his tank crew was obtaining qualification for live night fire operations a gunner engaged in a target for about 15 minutes non-stop. He was not provided hearing protection at that time. Since this event, his hearing has declined substantially. Following service, the Veteran worked at a roofing company. He indicated that he always wore hearing protection post-service. During the hearing the Veteran stated that approximately one-year after service, while he was working at the roofing company as a foreman, his workers indicated that they would ask him questions and he did not respond. A marriage certificate reveals that the Veteran was married in May 1962 and the Veteran testified that he recalled his wife having to repeat herself when they were first married. The Veteran underwent a VA examination in December 2016 and an addendum opinion was issued in January 2018. The examiner concluded that the Veteran’s bilateral hearing loss was less likely than not caused by or a result of noise exposure while in service given that the hearing test conducted at discharge did not show a significant threshold shift beyond normal measurement variability while in service. The examiner concluded that the evidence of record rebutted the Veteran’s subjective report of hearing loss while in service and that there was no noise injury while in service. After a review of the evidence, the Board finds that service connection for bilateral hearing loss is warranted. The Veteran is competent to describe what he experienced in service. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). The Board also finds the Veteran’s statements with respect to his continuity of symptomatology to be credible. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In making this determination, the Veteran has confirmed in-service noise exposure, and his description of in-service noise exposure is consistent with the circumstances of his service. Furthermore, he indicated that his hearing loss began in service and has continued since that time. There is no persuasive evidence of record indicating that the Veteran’s statements are not credible. Therefore, in light of the Veteran’s established in-service noise exposure, his current bilateral hearing loss disability for VA purposes, and his competent and credible reports of a continuity of symptomatology of hearing problems since service, the Board finds that the evidence weighs in favor of the Veteran’s claim. Regarding the medical opinions of record, the Board has given little probative weight to the examiner’s conclusion. In this regard, the examiner concluded that the Veteran’s bilateral hearing loss was not related to service due to the fact that his separation examination did not reveal a significant threshold shift. However, the Veteran did not undergo an audiometer test during his entrance examination. Moreover, the examiner concluded that there was no evidence of a noise injury in service without discussing the Veteran’s assertions that he was exposed to 15 minutes of non-stop ammunition fire without hearing protection, which left him disoriented and he experienced noticeable hearing loss. Moreover, the examiner failed to discuss the fact that there was no evidence of post-service noise exposure without hearing protection. Lastly, because sensorineural hearing loss (organic disease of the nervous system) is a chronic disease under 38 C.F.R. § 3.309(a), an award of service connection is appropriate solely based on evidence of continuity of symptomatology. Walker, 708 F.3d at 1336-40. (Continued on the next page)   In view of the foregoing, and in consideration of the credible lay statements, the Board finds that the evidence is at least in equipoise regarding the question of whether the Veteran’s current bilateral hearing loss is the result of military service. In cases where the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Hurley, Associate Counsel