Citation Nr: 18100719 Decision Date: 04/19/18 Archive Date: 04/19/18 DOCKET NO. 14-21 981 DATE: April 19, 2018 ISSUES DECIDED: 1 ISSUES REMANDED: 0 ORDER Service connection for bilateral hearing loss is granted. FINDING OF FACT With resolution of doubt in the Veteran’s favor, bilateral hearing loss is related to his in-service noise exposure. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.385 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1976 to June 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Previous rating decisions were issued denying entitlement to service connection for bilateral hearing loss in December 2009 and January 2011. However, these decisions did not become final because the Veteran submitted new and material evidence pertaining to the claim of entitlement to service connection within one year of the date of the letters notifying the Veteran of the decisions. See May 2010 and September 2011 private audiological evaluations. New and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b) (2017). Thus, the receipt of the private audiological evaluations operated to prevent the December 2009 and January 2011 rating decisions from becoming final. Entitlement to service connection for bilateral hearing loss The Veteran claims he has bilateral hearing loss as a result of acoustic trauma sustained during his military service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). Impaired hearing is considered a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. This does not prevent, however, a veteran from establishing service connection on the basis of post-service evidence of hearing loss related to service when there were no audiometric scores reported at separation from service. Hensley v. Brown, 5 Vet. App. 155 (1993) (noting that a loss of 20 decibels or more could indicate some hearing loss, albeit not meeting the thresholds of 38 C.F.R. § 3.385). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102 (2017). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. Gilbert v. Derwinski, 1 Vet. App. 4 (1990). First, the Board finds that resolving all doubt in favor of the Veteran, there is current hearing loss disability. VA examinations conducted in November 2009 and April 2012 show audiometric findings that do not meet the definition of hearing loss for VA purposes. Conversely, the Veteran has submitted two private audiological evaluations that demonstrate bilateral hearing loss. In a May 2010 private evaluation, the Veteran demonstrated puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 50 55 45 NA 55 LEFT 40 35 55 NA 55 The Veteran also submitted a September 2011 private audiological evaluation that provided speech audiometry testing conducted using the Maryland CNC test. Word recognition scores in the right ear were 72 percent in the right ear and 88 percent in the left ear. The May 2010 audiological test shows auditory thresholds in excess of 40 decibels on several frequencies in the right and left ear. In addition, the September 2011 audiological report shows Maryland CNC speech recognition scores that are below 94 percent. There is an approximate balance of positive and negative evidence regarding a present diagnosis. In such situations, the claimant prevails. Thus, the Board resolves doubt in the Veteran’s favor and finds that the present disability element of service connection is met. See Holton, 557 F.3d at 1366. Next, regarding the second element of service connection, the Board finds that the Veteran had in-service noise exposure. His DD 214 lists his military specialty as Cannon Fire Direction Specialist. Thus, the in-service element of service connection has been met. See Holton, 557 F.3d at 1366. Finally, the Board finds that there is a relationship between the in-service noise exposure and current hearing loss. The May 2010 private audiologist opined that it was at least as likely as not that the Veteran’s hearing loss was a result of noise exposure on active duty, noting that the Veteran’s test results were consistent with what she would expect to see, given the military circumstances. During the November 2016 hearing, the Veteran testified credibly that he was not exposed to significant acoustic trauma after he separated from military service, suggesting that there are no intercurrent causes of his hearing loss. Although the 2009 VA examiner provided a negative nexus opinion, it was based on the finding that there was no current hearing loss and thus is without probative value. The Board finds that the evidence supports a finding that the Veteran’s current bilateral hearing loss is related to acoustic trauma sustained during his military service. Service connection is granted. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Steve Ginski, Associate Counsel