Citation Nr: 1808617 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 11-24 137 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Boal, Associate Counsel INTRODUCTION The Veteran had active military service from October 1964 to September 1968. This matter comes before the Board of Veterans' Appeals (Board) from a September 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio denying service connection for bilateral hearing loss and tinnitus. In December 2016, the Board granted the claim for service connection for tinnitus and remanded the claim for bilateral hearing loss to obtain a new VA examination. A new VA examination was conducted in January 2017. In September 2017, the Board remanded the case to obtain outstanding treatment records and to obtain an addendum opinion to the January 2017 VA Examination. In October 2017 an addendum opinion was obtained. The Board may now proceed in adjudicating the case. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran requested a Board hearing and was scheduled for a hearing in June 2016. The Veteran did not report to the hearing and did not provide an explanation for his failure to appear. As a result the December 2016 Board decision determined that the Veteran's hearing request has been withdrawn. 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) (West 2012). FINDINGS OF FACT 1. The Veteran currently has a bilateral hearing loss disability that meets the criteria of 38 C.F.R. § 3.385. 2. The Veteran was exposed to acoustic trauma during service. 3. The Veteran's bilateral hearing loss is related to the acoustic trauma he was exposed to in service. CONCLUSION OF LAW The criteria for service connection for right ear hearing loss have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran seeks service connection for a bilateral hearing loss disability. He asserts he has bilateral hearing loss as a result of his noise exposure during service, to include noise exposure due to working as a weapons control system mechanic. 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) (2017). 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. 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) (2017). Service connection may also 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) (2017). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as an organic disease of the nervous system, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). In this case, organic diseases of the nervous system are listed among the "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) potentially applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 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. With chronic diseases in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, sensorineural hearing loss is considered by VA to be an organic disease of the nervous system and is thus subject to presumptive service connection under 38 CFR § 3.309(a). M21-1MR III.iv.4.B.12.a. Specific to claims for service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Turning to the facts of the present case, the Veteran asserts that he suffers from hearing loss results as a result of his exposure to acoustic trauma as aa weapons control system mechanic while in service. The Veteran was exposed to acoustic trauma from auxiliary power units and air conditioning units used while he performed maintenance on aircraft. The Veteran attended two VA examinations in July 2010 and in January 2017 to determine whether he had hearing loss. Specifically, both examinations reflect hearing thresholds of 40 decibels or greater in all of the frequencies tested in both ears. Based on the results of the VA examinations, the Board finds that the Veteran has a bilateral hearing loss disability as defined in 38 C.F.R. § 3.385. The Veteran's service treatment records do not reflect findings of hearing loss in service; however, in a June 2010 statement, the Veteran has reported that he experienced hearing loss in service and also credibly described acoustic trauma in service. Service records confirm his service as a weapons control systems mechanic; thus, the Board finds credible the Veteran's assertions that he was exposed to such acoustic trauma as that is consistent with the expected circumstances of his service. Furthermore, the Veteran is competent to report symptoms such as decreased hearing as it is something he senses. See Layno v. Brown, 6 Vet. App. 465 (1994). The final question is whether there is a nexus between the current hearing loss and the acoustic trauma in service. In this regard, the Board finds that the evidence is at least in relative equipoise. Although the Veteran was not specifically diagnosed with a hearing loss disability of either ear in active service, such is not required. The Board notes that on VA audiological examinations in July 2010 and April 2016 the VA examiners opined that the Veteran's current hearing loss was not likely related to his exposure to noise in service, reasoning that hearing loss had not been shown during service or on the Veteran's service separation examination. However, in a June 2010 statement, the Veteran reported that his hearing loss began in service, and in a September 2016 medical record, the VA audiologist noted that the Veteran stated that his hearing problems began in service and have since worsened. Furthermore, the Board notes that VA has conceded that the Veteran was exposed to acoustic trauma and that the Veteran is service-connected for tinnitus related to the in-service acoustic trauma. The Board finds the medical evidence of record, along with the Veteran's assertions of the onset of hearing loss during service, in the context of the demonstrated in-service acoustic trauma and a current diagnosis of bilateral hearing loss, are sufficient to place in equipoise the question of whether the Veteran's current bilateral hearing loss disorder was incurred in service and is etiologically related to the noise exposure in service. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that hearing loss was incurred in service and the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for bilateral hearing loss is granted. ____________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs