Citation Nr: 1817258 Decision Date: 03/19/18 Archive Date: 03/30/18 DOCKET NO. 10-33 328 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.A. Gelber, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1979 to March 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before a Veterans Law Judge of the Board in April 2011 and August 2014. Transcripts of those hearings have been associated with the virtual file and reviewed. This case was previously before the Board in December 2011, March 2014, September 2016, and August 2017, on which occasions it was remanded for further development. As the requested development has been completed, no further action to ensure compliance with the remand directives is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDING OF FACT The competent and probative evidence is at least in equipoise as to whether the Veteran's bilateral hearing loss had its onset in or is otherwise related to his period of active service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As the issue decided herein is being granted in full, any deficiency as to VA's duties to notify and assist would be harmless error and will not be discussed. II. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). As a general matter, establishing service connection requires competent evidence of (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. In a claim of service connection for impaired hearing, demonstration of the first Shedden element-i.e., the existence of a current disability-is subject to the additional requirements of 38 C.F.R. § 3.385, which provides that service connection for impaired hearing shall not be established until the hearing loss meets pure tone and/or speech recognition criteria. Under this regulation, hearing status will be considered a disability for the purposes of service connection when the auditory thresholds in any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; and/or when speech recognition scores using the Maryland CNC Test are less than 94 percent. The United States Court of Appeals for Veterans Claims (Court) has indicated that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Service connection may be established on a presumptive basis for certain chronic diseases set forth in 38 C.F.R. § 3.309(a), including sensorineural hearing loss. See VBA Adj. Manual M21-1, III.iv.4.G.1.d (classifying sensorineural hearing loss as an organic disease of the nervous system under 38 C.F.R. § 3.309(a)). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden elements for the chronic diseases listed in Section 3.309(a) is through a demonstration of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331, 1335-88 (Fed. Cir. 2013). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154(a) (2012) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). After review of the record, the Board finds that the criteria for service connection for bilateral hearing loss have been met. An April 2013 audiological examination revealed speech recognition ability of 86 percent in the right ear and of 88 percent in the left ear. 04/23/2013, C&P Exam. Accordingly, the Board finds competent evidence of a current disability per 38 C.F.R. § 3.385. The Veteran claims that he was exposed to noise in service as a result of his military occupational specialty (MOS) as a mechanic. See 09/17/2014, Certificate of Release. Additionally, the Veteran described an incident where his ear plugs fell out while he was on the firing range, which caused him to experience hearing loss, ringing in the ears, and bleeding of the ears. As a result, he testified that he was placed on a profile for two weeks, during which he was not exposed to any noise. 04/07/2011, Hearing Testimony. The Veteran's service records show treatment for ringing of the ears due to noise exposure. 11/15/1988, STR-Medical. Accordingly, the Board finds that the competent and probative evidence demonstrates in-service acoustic trauma. The Veteran contends that he has experienced decreased hearing acuity since the in-service incident on the firing range. 03/25/2006, VA 21-4138. Although the Veteran was not diagnosed with hearing loss until March 2009, he originally filed a claim for hearing loss in October 1988, demonstrating an onset of at least subjective symptomatology more than 20 years prior to the diagnosis, and less than three years after discharge. 10/17/1988, VA 21-526. The Board also acknowledges that although an October 1986 audiogram does not show a hearing disability for VA purposes per Section 3.385, it does show some degree of hearing loss and significant threshold shifts from the most recent prior audiological examination in June 1984. See Hensley, 5 Vet. App. at 157. Additionally, audiograms conducted in February 1979, February 1982, April 1984, and June 1984 demonstrate positive threshold shifts at different frequencies during the Veteran's period of active service. 11/15/1988, STR-Medical. The evidence does not demonstrate intercurrent causes of hearing loss post-service. Accordingly, the Board finds that the competent and probative evidence is at least in equipoise as to whether hearing loss was noted in service and whether there is post-service continuity of the same symptomatology. See Savage, 10 Vet. App. at 495-97. The Board acknowledges the VA examiner's January 2012 opinion and October 2016 and August 2017 addendum opinions, in which she states that the Veteran's hearing loss is not related to his period of active service. However, the Board assigns the VA examiner's opinion less probative weight because it failed to properly address the Veteran's lay statements regarding post-service symptomatology. Accordingly, the Board finds that the competent and probative evidence is at least in equipoise as to whether the Veteran's current bilateral hearing loss had its onset in or is otherwise related to his period of active service. Furthermore, as the disability in question is a chronic disease under 38 C.F.R. § 3.309(a), an award of service connection may be established solely on the basis of continuity of symptomatology. Walker, 708 F.3d at 1338-39 (stating that the primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the "nexus" requirement of the three-element test, whereas the former benefits from presumptive service connection (absent intercurrent causes) or service connection via continuity of symptomatology). Hence, any doubt on the material issue of nexus is resolved in the Veteran's favor and the claim is granted. ORDER Service connection for bilateral hearing loss is granted. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs