Citation Nr: 1807004 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 13-03 954 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. Slovick, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The Veteran served on active duty from May 1966 to May 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal originally from a July 2009 rating decision of the Louisville, Kentucky Department of Veterans Affairs (VA) Regional Office (RO). The RO determined that new and material evidence was timely received to keep the original claim open, eventually leading to this appeal. The claim was remanded in July 2016 in order to schedule a Board hearing. The Veteran testified before the Board at a September 2016 hearing at the RO. A transcript of that hearing is of record and the directives of the July 2016 remand have been accomplished. FINDING OF FACT The Veteran's bilateral hearing loss disability is related to noise exposure during active duty service. CONCLUSION OF LAW Service connection for bilateral hearing loss is warranted. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.385 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, enlarged VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. As the decision regarding the Veteran's claim of entitlement to service connection for tinnitus is entirely favorable to the Veteran, no further action is required to comply with the VCAA. Factual Background and Analysis To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). The absence of documented hearing loss while in service is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). When a Veteran does not meet the regulatory requirements for a disability at separation, he can still establish service connection by submitting evidence that a current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155, 159-160 (1993). Under 38 C.F.R. § 3.385, for the purposes 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, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. The record includes findings of hearing loss as defined in 38 C.F.R. § 3.385. Thus a current disability is shown. Further the Veteran is shown to be a Combat Infantry Badge recipient and his records demonstrate rifle and machine gun training. Thus, in-service noise exposure is conceded. The Veteran asserts that his hearing loss is related to his in-service noise exposure. In an August 2010 statement, the Veteran reported he believed his ears were traumatized especially during Vietnam combat. He stated that he was subjected to several weeks of intense sniper fire training and noted that his tent was located next to a battery of 155 howitzers on constant fire missions, usually at night. He stated that his post-service work included factory work where hearing protection was provided. He explained that he did not remember his discharge examinations, but that at the time but he just wanted to go home and may not have reported his hearing loss. At his May 2009 VA examination, the VA examiner concluded that it was less likely than not that hearing loss was due to service noting that the Veteran's medical history at the time of his April 1968 separation examination was silent as to complaints of hearing loss and no finding of in-service hearing loss. The examiner stated that given the amount of time that elapsed since the Veteran's discharge from service and lack of evidence to suggest that hearing loss began in the service, hearing loss was less likely than not related to service. At a November 2010 VA examination, the VA examiner concurred with the findings above, the examiner noted that while the hearing showed a threshold shift during service, based on the amount of time since discharge and lack of evidence to suggest hearing loss began in service it was less likely than not that hearing loss was related to service. The examiner also noted that based on a threshold shift in hearing during service the examiner found that tinnitus was at least as likely as not due to noise exposure. At an October 2012 VA examination, the VA examiner noted the threshold shift from induction to separation but thresholds were 10 dB better than "cut off limit" the examiner found if there is no significant changes in hearing thresholds suggestive of noise injury, it was less likely than not hearing loss is due to noise injury. The examiner noted the Hensley ruling did not give clinicians the authority to disregard normal hearing exams at discharge. The examiner stated that the Institute of Medicine clearly stated that there was no way to predict if noise exposure occurs how much hearing loss would be sustained and that noise exposure does not always produce hearing loss. The examiner stated "we do know that auditory damage from acoustic trauma occurs instantly which is why normal hearing results on a discharge exam so strongly suggests that any current hearing loss was not caused by military noise exposure." In contrast, at his September 2016 Board hearing, the Veteran testified that he encountered constant noise during service and noted that he had minimal noise exposure following service. Further, in September 2010 and October 2016, the Veteran's private otolaryngologist, Dr. J.E., noted that following examination and review of the Veteran's history, it was his impression that the Veteran had high-frequency sensorineural hearing loss secondary to acoustic trauma sustained during military service. There are conflicting opinions as to whether the Veteran's currently diagnosed hearing loss is related to his service. The Veteran's VA examiners opined that hearing loss was not related to service as the Veteran's hearing loss was only shown years after service. When considered alongside the Veteran's own statements and the findings of Dr. J.E. that the Veteran's hearing loss is at least as likely as not due to service, the evidence is in equipoise. If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). In this case, the Board finds that the evidence is at least in equipoise as to whether the Veteran's hearing loss is related to his service. Resolving reasonable doubt in favor of the Veteran, service connection for hearing loss is granted ORDER Entitlement to service connection for bilateral hearing loss is granted. ____________________________________________ M.H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs