Citation Nr: 1808146	
Decision Date: 02/08/18    Archive Date: 02/20/18

DOCKET NO.  12-17 604	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to service connection for bilateral hearing loss disability.


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

S. Patel, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 1971 to February 1973. 

This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

In November 2014, the Board remanded the claim for further evidentiary development.

The Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ) in December 2013.  A transcript of the hearing has been associated with the record.  In October 2016, the Veteran was informed that the VLJ who conducted the December 2013 hearing was no longer with the Board and he was provided the opportunity to have another hearing.   The Veteran responded that he wanted another Board hearing.  In a letter dated December 2, 2016, VA notified the Veteran that his hearing was scheduled on January 17, 2017, before a Board member in Washington, D.C.  The Veteran failed to report for this scheduled hearing without good cause.  VA has received no communication, written or otherwise, from the Veteran pertaining to the hearing.  Because the Veteran has failed to appear for his scheduled hearing without good cause and there has been no request for postponement, his request for a hearing will therefore be considered withdrawn.  38 C.F.R. § 20.704(d) (2017).


FINDING OF FACT

The evidence is in relative equipoise as to whether the Veteran's bilateral hearing loss is attributable to in-service noise exposure.




CONCLUSION OF LAW

The criteria for service connection for bilateral hearing loss have been met.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

A.  Duties to Notify and Assist

VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. § 3.159.  In this case, any error in notice or assistance is harmless given the favorable determination.

B.  Legal Criteria and Analysis

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury.  See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including organic diseases of the nervous system, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service.  38 U.S.C §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  Sensorineural hearing loss is an "organic diseases of the nervous system" subject to presumptive service connection where there is evidence of acoustic trauma and nerve damage.  See Fountain v. McDonald, 27 Vet. App. 258, 271 (2015).  

Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service.  See 38 C.F.R. § 3.303(b).  However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

Impaired hearing will be considered a disability for VA purposes when the auditory thresholds in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) are 40 decibels or more; or when the 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.

In the present case, the Board finds that the Veteran currently has bilateral hearing loss.  Audiometry completed in December 2014 reflects puretone thresholds of 26 decibels or greater at 2000, 3000, and 4000 Hz in both ears.  Therefore, the evidence reflects that the Veteran currently has bilateral hearing loss for VA purposes.  38 C.F.R. § 3.385.

The Veteran's pre-induction November 1970 audiometry results reflect that there was some degree of hearing loss at that time; however, these results do not show hearing loss by VA standards in either ear.  See McKinney v. McDonald, 28 Vet. App. 15 (2016) (holding when a veteran's hearing loss did not meet VA's definition of a "disability" for hearing loss under 38 C.F.R. § 3.385, the veteran was entitled to the presumption of soundness under 38 U.S.C. § 1111); Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (noting that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss).  Therefore, the Veteran is presumed sound as to hearing loss.  

The Board finds that the Veteran suffered an in-service injury, namely exposure to hazardous noise.  He has provided competent, credible, and probative testimony regarding noise exposure during service.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (holding that laypersons are competent to report lay observable symptoms and information of which they have personal knowledge).  For example, at the December 2013 hearing, the Veteran explained that he was required to fire 60 caliber machineguns, M-14 rifles, M-16 rifles, hand grenades, and 105 mm Howitzers.  The Veteran added that he was on ships' decks while they fired cannons.  See Hearing Transcript.  The Veteran identified that while he was in the 3rd Battalion, 9th Marines, 3rd Marine Division, he fired heavy weapons, which negatively affected his hearing.  See January 2010 Claim for Compensation.  The Veteran's service records corroborate his account of in-service noise exposure.  Specifically, service personnel records show the Veteran was an ammo man and gunner with the 3rd Battalion, 9th Marines, 3rd Marine Division and a machine gunner with the 2nd Battalion, 7th Marines, 1st Marine Division.  Likewise, service personnel records indicate that the Veteran was enrolled in an M-60 machinegun course in August 1972.  The Veteran's DD Form 214 also lists his military occupational specialty as machine gunner and indicates that he earned a Rifle Expert Badge.  

Finally, the Board concludes that the Veteran has provided competent and credible evidence reflecting that he began experiencing difficulty hearing in service and continued to experience such symptoms after service.  At his December 2013 hearing, the Veteran testified that he noticed hearing problems during service and that he continued to have hearing problems after service.  Additionally, a February 2010 buddy statement from C.M. reports that he knew the Veteran growing up and after service.  He reported that prior to service, someone could call the Veteran from blocks away and he would hear that person and come running.  C.M. further stated that after the Veteran returned from service, he noticed that the Veteran had difficulty hearing him in that C.M. would have to call him two or three times before he would hear the calls. 

The Board finds the Veteran competent and credible with regard to symptoms of decreased hearing in service and continuity of symptoms of decreased hearing since service.  There is evidence that he had noise exposure in service.  The Board also finds the Veteran's statements that he has been experiencing bilateral hearing loss continuously since his discharge from service to be competent and credible and places great weight of probative value on them.  The Board acknowledges that a VA examiner opined that the Veteran's bilateral hearing loss was not related to his service.  See December 2014 VA Examination.  However, this opinion did not take into account the Veteran's competent and credible statements regarding continuity of symptoms of decreased hearing since service.  Therefore, the Board places little weight of probative value on the opinion.

In light of the foregoing, the Board is satisfied that the criteria for entitlement to service connection for bilateral hearing loss have been met.  The evidence, at a minimum, gives rise to a reasonable doubt on the matter.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.


ORDER

Service connection for bilateral hearing loss is granted.



____________________________________________
M. SORISIO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs