Citation Nr: 1808892 Decision Date: 02/12/18 Archive Date: 02/23/18 DOCKET NO. 11-31 146 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Rachel Mamis, Associate Counsel INTRODUCTION The Veteran had active air service from February 1973 to September 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. This matter was previously before the Board, most recently in June 2014, at which time the Board remanded the issues currently on appeal for additional development. The case has now been returned to the Board for further appellate action. In connection with this appeal, the Veteran testified at a hearing before a Veterans Law Judge at the RO in May 2012. A transcript of that hearing has been associated with the claims file and has been considered in support of the Veteran's claim. Upon notice that this Veterans Law Judge was no longer employed by the Board, the Veteran and his representative were afforded an opportunity for another hearing, which they declined. FINDING OF FACT The evidence as to whether the Veteran's current bilateral hearing loss disability is related to service is in relative equipoise. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for a bilateral hearing loss disability have been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran has asserted that he has bilateral hearing loss due to active service. More specifically, he asserts that his hearing loss disability is due to exposure to aircraft engines while loading and unloading cargo on the flight line in the Air Force. Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. § 1110 ; 38 C.F.R. §3.303. Establishing service connection on a direct basis requires evidence demonstrating: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the claimed in-service disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 78 F.3d 604 (Fed. Cir. 1996). Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). Hensley v. Brown, 5 Vet. App. 155, 159 (1993). For 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 above frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Hensley v. Brown, 5 Vet. App. at 157. The Veteran's service treatment records (STRs) are silent for complaints, treatment or a diagnosis of hearing loss while in service. The Veteran's personnel records, as well as his Department of Defense Form 214, indicate he trained and served as a Freight Traffic Specialist. Therefore, based on the Veteran's MOS, his exposure to acoustic trauma in service is conceded. The Board acknowledges an August 2010 statement in support from the Veteran. In it, he relayed his extensive history of in-service noise exposure, in particular while living and working in close proximity to the flight line. He noted, in particular, repeated exposure to aircraft engines from planes during take-off and landing. He further stated that he noticed hearing impairments while in service, with associated symptoms, including ear popping and clogging. He stated that while on active duty that he began experiencing difficulty communicating with fellow service members, including hearing instructions relayed by these individuals. The Veteran was afforded a VA ear disease examination in December 2010. At the time, the Veteran reported a slight decrease in his hearing since service. The examiner noted that the Veteran had no abnormalities of the ear. He documented a prior hearing examination which found that the Veteran had profound sensorineural hearing loss; however, he determined the results were unreliable. The Veteran underwent a subsequent VA hearing examination in September 2011. At the time, the Veteran reported a history of noise exposure while in service with a history of hearing loss. He denied any significant post service recreational or occupational noise exposure. The VA examiner confirmed a diagnosis of bilateral sensorineural hearing loss for VA purposes. However, the examiner opined that the Veteran's hearing loss was not as least likely as not caused by or the result of the Veteran's in-service noise exposure. He explained that the Veteran's February 1977 audiogram showed normal hearing bilaterally. The examiner concluded that he was unable to determine whether the Veteran had hearing loss; and, further whether such hearing loss was due to in-service noise exposure without resorting to mere speculation. He also cited evidence from the American College of Occupational and Environmental Medicine, as well as a 2005 Institute of Medicine (IOM) study, which he indicated found no scientific basis for delayed onset noise-induced hearing loss. At a May 2012 hearing before the Board, the Veteran confirmed that he experienced significant in-service noise exposure, often without the benefit of hearing protection. He again relayed difficulty hearing his fellow service members while on active duty, which he attributed to reduced hearing acuity, as well as to the noise on the flight line. He further denied any history of post service recreational or occupational noise exposure. A November 2014 hearing loss disability benefits questionnaire (DBQ) was obtained in response to this Board's remand directives. However, the examiner once against concluded that the test results were not valid for rating purposes. She stated that the Veteran's test results, which reported profound hearing loss, were at odds with his ability to communicate with the examiner at a normal volume. She additionally noted that the Veteran's hearing had gone from mild to profound, according to the results, in just three years. She noted his profound level of hearing loss, if in fact correct, was not consistent with noise that would be encountered on the flight line, but would have required a more substantial acoustic trauma. In order to obtain an opinion which was based on a valid audiometric examination, and considered the evidence of record, the Board subsequently requested an VHA opinion from an audiologist, which reconciled the findings of the December 2010 and September 2011 audiological examinations. This opinion was obtained in November 2017. The audiologist conducted a review of the Veteran's claims file, including in service and post service audiograms. On the basis of the evidence, the audiologist opined that the September 2011 examination, which revealed moderate sensorineural hearing loss bilaterally, was the most reliable. On the basis of that examination, she opined that it was less likely than not that the Veteran's conceded in-service noise exposure contributed to his current hearing loss. In support, she relied on the Veteran's normal February 1977 audiogram, which she stated should have reflected some hearing loss if there was an injury due to in-service noise exposure. In addition, she cited a 2006 IOM study which again concluded that there was no scientific basis, based on currently available anatomical and physiological data, for delayed onset noise induced hearing loss. According to this study, the development of noise-induced hearing loss long after the cessation of noise exposure was "unlikely". The Board finds that the November 2017 opinion does not constitute sufficient probative evidence against the claim. The examiner relied for support, on the Veteran's normal February 1977 audiogram, as well as the absence of a negative shift in the Veteran's hearing during service, in contravention of the Court's holding in Hensley v. Brown, 5 Vet. App. at 157. The VA examiner did not address the Veteran's lay statements, in particular that there was a noticeable difference in his hearing during service. As the Veteran's statements constitute reports of lay observable symptoms, the Board finds the Veteran competent to make these statements. The Board also finds the Veteran's statements regarding his hearing loss are credible insofar as there is little evidence to rebut the veracity of those statements, and such statements are consistent with the incidents and circumstances of his service. The VA examiner concluded that there is no basis for latent onset hearing loss, despite the Veteran's statements that he has experienced hearing loss since separation. For these reasons, the Board assigns the November 2017 VA medical opinion little probative value. Alternatively, the Board has conceded acoustic trauma during active service. The Veteran has a current diagnosis of a bilateral hearing loss disability for VA purposes. The Veteran has competently reported that he first experienced hearing loss in service and that he has continued to experience hearing loss since that time, and those statements have been found credible by the Board. The Board notes that the Veteran is competent to report that he experienced such symptoms in service, as they are given to lay observation, and the Board finds no reason to doubt his credibility. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Charles v. Principi, 16 Vet. App. 370, 374 (2002). Because the hearing loss is a chronic disability, service connection may be proven by establishing continuity of symptomatology from service until the disability is diagnosed. In this case, the Board finds that there is both evidence for and against the claim and as such, the evidence is at least in equipoise. Accordingly, the benefit of the doubt doctrine applies and entitlement to service connection for a bilateral hearing loss disability is warranted. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a bilateral hearing loss disability is granted. ____________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs