Citation Nr: 18158638 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 16-27 863 DATE: December 17, 2018 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT The Veteran’s bilateral hearing loss disability is at least as likely as not related to acoustic drama during his active duty service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U.S. Air Force from October 1974 to October 1978. This matter came before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection bilateral hearing loss. In August 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) and a transcript of the hearing is associated with the claims file. 1. Entitlement to service connection for bilateral hearing loss The Veteran seeks service connection for bilateral hearing loss. He asserts he has bilateral hearing loss as a result of his noise exposure during service, to include noise exposure due to working close to diesel engines and repeated helicopter landings on a ship. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a) (2017). For the showing of a chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b) (2017). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d) (2017). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2017). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as an organic disease of the nervous system, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). In this case, organic diseases of the nervous system, including hearing loss and tinnitus, are listed among the “chronic diseases” under 38 C.F.R. § 3.309 (a); therefore, 38 C.F.R. § 3.303 (b) potentially applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of a “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic diseases in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303 (b). Specific to claims for service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran attended a VA examination in April 2014 to determine whether he had hearing loss related to his service. The examiner reported speech discrimination score on the Maryland CNC of 96 percent in the right ear and 92 percent in the left ear as well as auditory thresholds in multiple frequencies in excess of 40 decibels bilaterally. The VA examination reflected that the Veteran had bilateral hearing loss. Based on the results of the VA examination, the Board finds that the Veteran has a bilateral hearing loss disability as defined in 38 C.F.R. § 3.385. The Veteran’s service treatment records do not reflect a formal diagnosis for hearing loss in service. However, the Veteran testified that while on active duty he was worked near diesel engines, drones, and helicopters. He worked on elevators, and hydraulic pumps below deck, and helicopters would land on the deck above him. Service records confirm his service on the USS Guam (LPH-9), a type of helicopter carrier ship. The Veteran further testified that he first noticed his hearing loss right after he separated from active duty service. The Veteran also credibly described acoustic trauma in service. The Veteran’s wife also testified that she noticed that the Veteran’s hearing has decreased and that he needed to use hearing aids to hear. The Veteran’s former wife provided a written statement indicating that the Veteran’s hearing loss began during service and that she noticed a “huge turning point” with the Veteran’s hearing loss. Thus, the Board finds credible the Veteran’s assertions that he was exposed to such acoustic trauma as that is consistent with the expected circumstances of his service, and that he experienced hearing loss shortly after separation from service. Furthermore, the Veteran is competent to report symptoms such as decreased hearing and tinnitus as they are something that he senses. See Layno v. Brown, 6 Vet. App. 465 (1994). The final question is whether there is a nexus between the current bilateral hearing loss and the acoustic trauma in service. In this regard, the Board finds that the evidence is at least in relative equipoise. Although the Veteran was not specifically diagnosed with a hearing loss disability in active service, such is not required. The Board notes that on the report of the VA audiological examination in February 2014 the VA examiner opined that the Veteran’s current hearing loss disability was less likely than not related to his exposure to noise in service, reasoning that hearing loss had not been shown during service or on the Veteran’s service separation examination. However, the Board notes that while the Veteran’s service medical records did not reflect a hearing loss disability as defined by VA regulation, see 38 C.F.R. § 3.385 (2017), a July 1977 audiogram did reflect some evidence of bilateral hearing loss in the 500, 1000, and 4000 Hertz frequencies. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (holding that “the threshold for normal hearing is from 0 to 20 dB [decibels], and higher threshold levels indicate some degree of hearing loss.”). The Veteran’s service treatment records therefore reflect some evidence of hearing loss in both ears. See Id. The Veteran also sought a hearing evaluation from a private audiologist. The August 2018 private audiologist opined that it is at least as likely as not that the Veteran’s hearing loss was caused by his in-service acoustic trauma. The Board further notes that the Veteran has been service connected for tinnitus which a VA examiner found was at least as likely as not caused by his in-service acoustic trauma. The Board finds that the medical evidence of record, along with the Veteran’s assertions of the acoustic trauma that he experienced during service, along with his current diagnosis of bilateral hearing loss and service-connected tinnitus, are sufficient to place in equipoise the question of whether the Veteran’s current bilateral hearing loss was caused by the noise exposure in service. For these reasons, and resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s bilateral hearing loss is related to his active duty service and the criteria for service connection for bilateral hearing loss has been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Boal, Associate Counsel