Citation Nr: 1807791	
Decision Date: 02/06/18    Archive Date: 02/14/18

DOCKET NO.  09-20 973	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUE

Entitlement to service connection for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Illinois Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

D.M. Casula, Counsel 



INTRODUCTION

The Veteran served on active duty from December 1966 to August 1969.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois.

In June 2012, the Veteran testified at a videoconference hearing before a Veterans Law Judge who is no longer employed by the Board.  In a May 2017 letter, the Veteran was informed of his options for another Board hearing and was told that, if he did not respond within 30 days, the Board would assume that he did not want another hearing.  The record reflects that he did not respond to the letter.  In September 2012 and in August 2017, the Board remanded this matter for further development.  

FINDING OF FACT

Resolving reasonable doubt in the Veteran's favor, his bilateral hearing loss disability is related to his active military service.


CONCLUSION OF LAW

Bilateral hearing loss was incurred in active service.  38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303.  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, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 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.  38 C.F.R. § 3.385.

In this current appeal, the record reflects that the Veteran's exposure to excessive noise during service has been conceded.  Further, service connection has been granted for tinnitus, based on exposure to excessive noise in service.  The Board also notes that the Veteran does have current hearing loss disability, pursuant to 38 C.F.R. § 3.385, as shown on the VA audiological evaluations in February 2011 and August 2013. 

On a VA examination in February 2011, the examiner noted the Veteran's in-service noise exposure to include "[e]xposure to generator noise and incoming mortars and rocket explosions," and concluded that his current hearing loss was less likely than not related to in-service noise exposure.  In an amended opinion in December 2011, the examiner indicated that the overall opinion remained unchanged, noting that the Veteran "had normal hearing at discharge" and "had 20+ years of occupational noise exposure as a heavy equipment mechanic without ear protection." 

On a VA examination in August 2013, the examiner opined that the Veteran's hearing loss was not related to service.  As rationale, the examiner stated that the Veteran had normal hearing at separation in 1969 and that he worked 20 years as a diesel mechanic and was a hunter and used HPDS when he hunted. 

On a VA addendum report dated in August 2017, the VA examiner opined that the Veteran's current hearing loss was not related to service, noting that, although he reported exposure to generators and explosions in service without hearing protection, there was no acoustic trauma or change of auditory sensitivity noted as there were no threshold shifts from enlistment to separation.  The examiner noted that the Institute of Medicine (IOM) stated that there was insufficient scientific basis to conclude that permanent hearing loss will develop long after noise exposure and that a prolonged delay in the onset of noise-induced hearing loss was unlikely.  The examiner noted that the Veteran's reported history of occupational and recreational noise exposure was potential evidence of intervening causes of current hearing loss.  

The Board notes that the lack of any evidence showing that the Veteran exhibited hearing loss consistent with the regulatory threshold requirements for hearing loss disability during service (38 C.F.R. § 3.385) is not fatal to his claim.  The laws and regulations do not require in-service complaints of, or treatment for, hearing loss in order to establish service connection.  Ledford v. Derwinski, 3 Vet. App. 87 (1992).  Where there is no evidence of hearing disability until many years after service, "[i]f evidence should sufficiently demonstrate a medical relationship between the appellant's in-service exposure to loud noise and his current disability, it would follow that the appellant incurred an injury in service."  Hensley v. Brown, 5 Vet. App. 155 (1993).

As noted above, in granting service connection for tinnitus, VA conceded the Veteran's excessive noise exposure in service.  In light of this, as well as his credible lay history of having hearing loss since service, and the finding of hearing loss disability under 38 C.F.R. 3.385, the Board finds that the competent evidence is in relative equipoise as to whether hearing loss may be related to active service.  Accordingly, resolving reasonable doubt in his favor, the Board concludes that service connection for bilateral hearing loss is warranted.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, at 54 (1990).


ORDER

Service connection for bilateral hearing loss is granted.




____________________________________________
THERESA M. CATINO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs