Citation Nr: 1808765 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 13-31 248A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a bilateral hearing loss disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. Fraser, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1957 to April 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In November 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). FINDING OF FACT The Veteran's bilateral sensorineural hearing loss is etiologically related to his active service. CONCLUSION OF LAW The criteria for service connection for a bilateral hearing loss disability have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Legal Criteria Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis The Veteran seeks service connection for bilateral hearing loss, which he contends originated in service. The medical evidence confirms the Veteran currently has a bilateral hearing loss disability. The central issue that must be resolved at this time is whether the Veteran's current disability originated during service or is otherwise related to service. Initially, the Board notes that the Veteran's service treatment records (STRs) show he underwent a whispered voice test on entrance into active duty. His STRs do not indicate he underwent a puretone assessment at separation in April 1961; however, the Veteran's Navy occupational specialty was Aviation Mechanic. The United States Navy has acknowledged this occupational specialty has a high probability for exposure to hazardous noise, and as such, his exposure to damaging noise in service has been conceded. On VA examination in October 2010, the Veteran's puretone threshold and speech discrimination testing revealed evidence of a current bilateral sensorineural hearing loss disability in accordance with 38 C.F.R. § 3.385. However, the examiner concluded the Veteran's current hearing loss was less likely as not caused by or the result of his military service. In this respect, the examiner stated the Veteran's hearing loss did not reflect the typical noise-induced hearing loss configuration, and therefore, his disability was more likely caused by civilian noise exposure, presbycusis, or the result of some other etiology. The Board notes the examiner wholly failed to acknowledge or discuss the Veteran's lay reports in her medical opinion. Examiners simply are not free to ignore a veteran's statements related to lay observable symptoms. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Interestingly, the Board also notes the examiner reasoned the Veteran's hearing loss was not consistent with a noise-induced hearing loss, but then curiously indicated his hearing loss may be associated with post-military noise. Notwithstanding the medical opinion provided by the October 2010 VA examiner, the Board notes the Veteran provided a private audiology report from Beneficial Hearing Aid Center in November 2010, wherein the clinician stated the Veteran's hearing loss was as least as likely as not the result of his military noise exposure. The clinician explained the Veteran had been a patient since 2001. Following a review of the Veteran's complete medical history, to include his STRs, the clinician stated the Veteran had a history of unprotected acoustic trauma in service. Following service, the Veteran did have some occupational noise exposure; however, he utilized personal protective equipment at that time. Contrary to the October 2010 VA examiner, the clinician found the Veteran's current hearing loss to be consistent with a noise-induced sensorineural hearing loss, based on the severe sloping at higher puretone levels. Although there is a medical opinion indicating there is a less than 50 percent likelihood the Veteran's current hearing loss originated in service, the Veteran has reported he was exposed to significant noise exposure during his period of active duty, which is consistent with his military occupational specialty. Additionally, a favorable medical opinion has been provided by the Veteran's private clinician. Further, during his November 2017 Board hearing, the Veteran competently reported that his hearing has gradually worsened from his time in service to the present, and that he did not notice any problems with his hearing prior to entering active duty. In this case, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The Board also notes that under certain circumstances, lay evidence may be sufficient to establish a nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay evidence has been found to be competent with regard to a disease that has "unique and readily identifiable features" that are "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007); see also Charles v. Principi, 16 Vet. App. 370, 374-75 (2002) (providing that a veteran's testimony regarding tinnitus is competent evidence, as "ringing in the ears is capable of lay observation."). The Veteran has reported that he experienced diminished hearing in service, which has gradually worsened ever since. The Board finds the Veteran competent to report his hearing limitations. It is generally within the competence of a lay person to identify and observe the effect of a disability under the ordinary conditions of daily life. Many symptoms are readily observable by a lay person. Accordingly, the lay evidence provided by the Veteran is unquestionably competent evidence. In this respect, the Board finds the Veteran's own reports of experiencing decreased hearing to be at least as probative as the above-noted VA examiners' findings. As previously noted, this appeal turns on whether there is a nexus between the Veteran's hearing loss and his exposure to acoustic trauma in service. The Veteran has competently and credibly reported that he experienced acoustic trauma during service, and that his hearing has gradually worsened over time. In addition, the Veteran has provided a medical opinion from a private clinician who has treated the Veteran for many years. That clinician found the Veteran's hearing loss was as likely as not caused by acoustic trauma in service. Accordingly, a nexus to service is established. To the extent the VA examiner in October 2010 opined that it was less likely as not that the Veteran's hearing loss was related to his military service, the Board finds this opinion to be of marginal probative value as the opinion failed to address the Veteran's lay statements regarding the onset of his hearing loss. In sum, the Board is satisfied that the evidence supporting a nexus between the Veteran's currently diagnosed bilateral sensorineural hearing loss and his in-service acoustic trauma is at least in equipoise with the evidence against a nexus. Therefore, the Veteran is entitled to service connection for his bilateral hearing loss disability. ORDER Entitlement to service connection for bilateral hearing loss disability is granted. _________________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs