Citation Nr: 18159256 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 15-04 988 DATE: December 18, 2018 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT The evidence of record supports a finding that the Veteran’s bilateral hearing loss is etiologically related to his period of active military service, to include 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, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service in the U.S. Marine Corps from January 1972 to January 1974. 1. Entitlement to service connection for bilateral hearing loss The Veteran is seeking entitlement to service connection for bilateral hearing loss, to include consideration of whether any claimed hearing loss was aggravated by any noted pre-service hearing deficiencies. 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). Service connection may 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996). For some “chronic diseases,” presumptive service connection is available. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With “chronic disease” shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, 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). 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. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. If not manifest during service, where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the ‘chronic disease’ became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307. The term “chronic disease,” whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran’s service as shown by such Veteran’s service record, the official history of each organization in which such Veteran served, such Veteran’s medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154(a). At entry and exit of service, the Veteran’s ears were noted as abnormal, with scars described on his left ear. The Veteran denied using hearing aids, but reported a previous ear operation, tympanoplasty of the left ear a child, and drainage of the left ear. The entrance audiogram demonstrated bilateral hearing loss per VA standards of 38 C.F.R. § 3.385, and the Veteran was given a physical profile for hearing loss disability. During service, the Veteran complained of an ear ache, of the right ear in February 1972. Similarly, in April 1972, the Veteran complained of an inability to hear in the right ear. The examiner designated that the Veteran had a history of a fractured ear drum as noted from August 1971 records. However, August 1971 records only describe previous ear surgery of the left ear. Post-service, the Veteran reported difficulty understanding speech, particularly when in the presence of background noise. He stated that he knew his hearing loss declined over the years, but the loss in hearing acuity was a gradual progression. VA treatment records reveal that the Veteran worked as a carpenter for thirty years post-service, and in May 2010, the Veteran stated his hearing issues have been going on for fifty years, as he had bilateral tympanic membrane perforations and ear surgery as a child. The Veteran underwent VA examination in March 2013, where the examiner described sensorineural hearing loss in each ear. The examiner stated that the Veteran had mild, flat, hearing loss in both ears at enlistment, and a hearing test around the time of separation revealed no significant threshold change. As such his bilateral hearing loss was less likely related to active military service. Further, the examiner stated that the Veteran’s pre-existing mild hearing loss was not aggravated while in the military, and thus his symptoms are less likely related to noise exposure, but more likely related to the Veteran’s post-service occupation as a carpenter for thirty years without the use of hearing protection. The Board notes that this examiner also selected the portion of the examination report reflecting that the Veteran’s condition had been aggravated beyond the normal progression by military service while providing a rationale which is contradictory to that indication. The Board sought an additional medical opinion in July 2018 to cure any deficiencies in the previous medical evidence of record. In September 2018, the otolaryngologist stated that the Veteran had significant noise exposure in the military including hand grenades, artillery, and explosions without the use of hearing protection. Despite that, the examiner opined that the degree of exposure would not necessarily cause a detectable change in the Veteran’s hearing thresholds at separation. In answering the etiological questions, the examiner stated that it is more likely than not that the Veteran’s military noise exposure was a significant factor in his current hearing loss. Additionally, the examiner added that it is also more likely that his years as a carpenter contributed to that hearing loss. With regards to determining whether the Veteran’s pre-existing hearing loss was aggravated beyond the normal progress of the disorder during service, the examiner stated that it is not possible to determine what percentage of hearing loss is attributed to civilian and/or military noise exposure, therefore determining aggravation would be unascertainable. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Affording the benefit of the doubt to the Veteran, the Board finds that the evidence of record supports a finding that his hearing loss is etiologically related to his period of active military service. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). Notably, the expert otolaryngologist found that the Veteran’s hearing loss was aggravated by service, but could not determine the extent of aggravation. In such a situation, the BOard must resolve reasonable doubt in favor of the Veteran. Mittlieder v. West, 11 Vet. App. 181 (1998) (stating that, where it is not possible to distinguish the effects of a nonservice-connected condition from those of a service-connected disability, the reasonable doubt doctrine dictates that all symptoms be attributed to the service-connected disability). T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.L. Reid, Associate Counsel