Citation Nr: 18159697 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 15-30 835 DATE: December 19, 2018 ORDER Service connection for bilateral hearing loss is granted. FINDING OF FACT The Veteran’s current bilateral hearing loss is related to his military service. CONCLUSION OF LAW Bilateral hearing loss was incurred in active service. 38 U.S.C. § 1110, 1131 (West 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from March 1969 to January 1971, which included service in the Republic of Vietnam from August 1969 to August 1970. His awards and decorations include the Combat Infantry Badge and the Bronze Star Medal. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO in ¬¬¬June 2017. A transcript of that hearing has been associated with the claims file. Law and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). For the showing of 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. The provisions relating to continuity of symptomatology, however, can be applied only in cases involving those conditions enumerated under 38 C.F.R. § 3.309 (a) as a chronic disease. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). These provisions are applicable to sensorineural hearing loss (organic disease of the nervous system) and are considered to be a chronic disease for VA compensation purposes. In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including sensorineural hearing loss, are presumed to have been incurred in service if they manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For the purpose of applying the laws administered by VA, impaired hearing will be 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 these 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. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran has asserted that he experienced hearing loss while in service and that his current hearing loss is due to noise exposure therein. He has also indicated that his ears were sore in service, but noted that he did not seek any treatment at a hospital at that time. He has been granted service connection for tinnitus. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to service connection for bilateral hearing loss. Review of the Veteran’s service treatment records show that at a May 1968 pre-induction examination, normal hearing was found with audiological testing recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 (20) -5 (5) -10 (0) - 5 (10) LEFT 10 (25) 5 (15) 5 (15) - 10 (15) (NOTE: Prior to January 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA). Since January 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). For audiometric test results dated between January 1967 and December 1970, the Board will consider the recorded data under both ASA and ISO-ANSI standards. In order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses.) The Veteran was later provided a discharge examination in January 1971. At that time, he denied having a medical history of hearing loss, but did report ear, nose, or throat trouble. No further details were provided. A clinical evaluation found his ears and ear drums to be normal, and the pure tone thresholds, in decibels, were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 0 5 LEFT 0 0 0 5 15 In support of his claim, the Veteran submitted audiogram results dated from May 1992 to December 2001, which were performed in connection with his civilian employment as a firefighter. These records indicate that the Veteran was exposed to gunfire and served in the military. It was also noted that the Veteran was using hearing protection in connection with his civilian employment and had no noisy hobbies. A baseline hearing test performed in May 1992 showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 10 35 30 LEFT 10 5 10 40 50 Additional audiograms recorded during his civilian employment appear to show worsening hearing loss over the years. In July 2013, the Veteran was afforded a VA examination in connection with his hearing loss claim. Testing revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 50 60 65 LEFT 10 15 60 60 65 The July 2013 VA examiner opined that the Veteran’s hearing loss was less likely than not due to his military service. In support of that opinion, the examiner found that the Veteran had normal hearing upon entrance and exit to service and found no significant threshold shifts in either ear. The examiner also noted that the Veteran had not complained of hearing loss while in service. The Veteran was afforded another VA examination in July 2015. Audiological testing at that time showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 50 60 65 LEFT 15 20 60 60 70 After review of the evidence and an evaluation of the Veteran, the July 2015 VA examiner opined that the bilateral hearing loss was less likely than not related to service. The examiner found that the enlistment and separation examinations were normal and that there were no significant threshold shifts seen during service. The examiner also found that the Veteran’s reports regarding hearing loss while in service were unsubstantiated by the objective evidence. Finally, the examiner cited to a study indicating that there was insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure would develop long after the noise exposure. During his June 2017 hearing, the Veteran testified that he was subjected to loud noise while serving with a mortar platoon. He indicated that he did not wear any hearing protection during service, whereas such protection was required in his civilian position with the fire department. Furthermore, the Veteran has reported that, while serving in a combat situation, there was an explosion nearby that knocked him against a wall. After the blast, the Veteran realized that he could not hear and was taken to a hut for assistance, as he could not go to a hospital. He reported that his hearing returned the next day. The Board found that the July 2013 and July 2015 VA examiners did not have the opportunity to consider the Veteran’s June 2017 hearing testimony or the Veteran’s civilian employment audiograms showing that he had hearing loss in 1992, prior to his work with the fire department. In addition, the Board found that the VA examiners did not appear to have recognized the fact that the Veteran served in combat and would not have necessarily had the opportunity to seek treatment for any hearing difficulties at that time. Thus, the Board found the July 2013 and July 2015 VA examinations were inadequate and requested a VHA opinion. After a review of the evidence of record, the VHA examiner opined that the current hearing loss was at least as likely as not a result of hazardous noise exposure during service. The examiner found that it was reasonable to believe that the Veteran was exposed to hazardous noise during combat. He also found that the absence of audiometric testing at 3000 Hertz at intake and the absence of testing at 6000 Hertz and 8000 Hertz upon separation, which would have been affected by hazardous noise, did not justify a negative opinion. Specifically, he noted that, without testing at 3000 Hertz upon entry to the military, there was no way to definitively state that a significant shift in hearing had not occurred during service, as a baseline measure was not present. He also noted that the previous examiners had not addressed this missing audiometric information in their opinions. Therefore, he found that it was possible that the Veteran separated from service with a high frequency hearing loss, given the reported history of hazardous noise exposure. The Board finds that, after weighing the evidence, the December 2018 VHA opinion is the most probative of record. The examiner provided a medical opinion supported by rationale and a discussion of the Veteran’s medical history. The VHA examiner also considered the credible testimony from the Veteran regarding his exposure to hazardous noise during combat situations. In contrast, the other medical opinions of record were not based on the complete evidence of record, such as the earlier audiograms in 1992 and the Veteran’s hearing testimony. Accordingly, the Board finds that service connection for the Veteran’s bilateral hearing loss is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Rideout-Davidson, Counsel