Citation Nr: 1817751 Decision Date: 03/22/18 Archive Date: 04/03/18 DOCKET NO. 15-04 176A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Slovick, Counsel INTRODUCTION 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) (2012). The Veteran served on active duty from May 1967 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified before the Board at a January 2018 videoconference hearing. A transcript of that hearing is of record. FINDING OF FACT The evidence is in relative equipoise as to whether the Veteran's bilateral hearing loss is related to service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102 , 3.303, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Given the Board's favorable disposition concerning the Veteran's service connection claim for hearing loss, the Board finds that no discussion of VCAA compliance is necessary at this time; any notice defect or duty to assist failure is harmless. II. Service Connection The Veteran contends that he has hearing loss as a result of his active duty service. To prevail on a direct service connection claim, there must be competent evidence of (1) 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 current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). For purposes of applying VA laws, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz 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 (2017). The United States Court of Appeals for Veterans Claims (Court) had 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). In Hensley, the Court indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a medical relationship between a Veteran's in-service exposure to loud noise and a current hearing loss disability. Id. The medical evidence of record reveals that there is a current diagnosis of a hearing disability. VA examination reports demonstrate that the Veteran has sensorineural hearing loss according to the definition of impaired hearing under 38 C.F.R. § 3.385 (2017). The Veteran's service records indicate that he earned the combat infantry badge, noise exposure from combat is conceded. Further, the Veteran's examination reports and private treatment demonstrate hearing loss as defined under 38 C.F.R. § 3.385, thus a present disability is shown. The question for the Board is whether the Veteran's present hearing loss is due to his in-service noise exposure. In an August 2014 VA examination, following physical examination of the Veteran and review of treatment records, the VA examiner concluded that it was less likely than not that the Veteran's hearing loss was related to service. The examiner explained that the Veteran had normal hearing at the time of separation from service without a significant threshold shift in hearing during service. The examiner cited a study that stated there was insufficient evidence from longitudinal studies to determine whether permanent noise induced hearing loss could develop much later in one's lifetime. In contrast, the Veteran asserts that he experienced a gradual decrease in hearing loss since his time in service. The Veteran testified in January 2018 that he did not have any hearing problems before entering the Army. He described noise exposure to include noise from small arms and machine gun fire, grenades, and noise from helicopters. Further, the claims file includes the April 2014 and November 2017 findings of private physician Dr. M.M. who found a relationship between the Veteran's hearing loss and noise exposure in service. In the April 2014 opinion Dr. M.M. states that he had reviewed the Veteran's DD 214 as well as his medical history and found that it was as likely as not related to his exposure to artillery and noise in service. The VA audiological examiner's findings weighing against the Veteran's claim. In support of the claim are Dr. M.M.'s positive findings, a finding of in-service noise exposure, the Veteran's reports of continued observation of hearing loss since that time, and a finding of a current hearing loss disability. When weighed against the findings of the VA examiner, the evidence of record weighing for the Veteran's claim is at least in equipoise. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2017). Thus, service connection is warranted. ORDER Entitlement to service connection for bilateral hearing loss is granted. ____________________________________________ M.H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs