Citation Nr: 18106928 Decision Date: 06/01/18 Archive Date: 05/31/18 DOCKET NO. 15-11 195 DATE: June 1, 2018 ORDER The appeal as to the issue of entitlement to service connection for cervical spine osteoarthritis and degenerative disc disease is dismissed. Entitlement to service connection for bilateral hearing loss is granted. FINDINGS OF FACT 1. In April 2015, the Veteran submitted a written statement withdrawing his appeal of entitlement to service connection for cervical spine osteoarthritis and degenerative disc disease. 2. The Veteran’s bilateral hearing loss is as likely as not related to his active duty service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to service connection for cervical spine osteoarthritis and degenerative disc disease by the Veteran have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1966 to October 1969. These matters come before the Board of Veterans’ Appeals (Board) on appeal from the July 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.204 (2017). In the present case, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal of service connection for cervical spine osteoarthritis and degenerative disc disease in an April 2015 correspondence. Thus, there remain no allegations of errors of fact or law for appellate consideration regarding that issue. Service Connection Bilateral hearing loss In general, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). In addition to the basic service connection principles outlined above, hearing loss is not deemed disabling for VA purposes unless the claimed hearing loss is of a particular level of severity. In that regard, hearing impairment will be considered a disability only when the puretone threshold for any of the frequencies at 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the thresholds at three of these frequencies are 26 or greater; or, speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran asserts that his bilateral hearing loss is due to his time serving on the flight line during active duty service. See March 2015 VA Form 9. The April 2011 VA examination report reflects that the Veteran has current diagnosis of bilateral hearing loss. As such, the first Shedden element is met. During the April 2011 VA examination, the Veteran reported being exposed to aircraft and jet noise while working as aviation machinist mate in the Navy. The Board notes this report is consistent with the Veteran’s DD 214, which reflects the Veteran served as an aircraft mechanic. Accordingly, exposure to noise during service is conceded. Therefore, the second Shedden element is met. The disposition of this appeal turns upon the question of whether the Veteran’s bilateral hearing loss was incurred during service, or resulted from an in-service injury or event such as acoustic trauma. In April 2011, the Veteran was afforded a VA examination to determine the nature and etiology of his bilateral hearing loss. The examiner reviewed the claims file and performed an in-person examination. The examiner noted that the Veteran’s service exit examination in 1969 documented normal hearing at separation. The examiner acknowledged the Veteran’s service likely exposed him to excessive amounts of noise, but noted that service treatment records reflected normal hearing, and the audiological testing performed during the April 2011 examination was consistent with normal aging. In September 2011, the Veteran submitted a private audiology report from J.D., a private hearing specialist. The private provider concluded after a review of the medical records that the Veteran’s hearing loss is related to service. The rationale was based on a threshold shift of up to 15 dB decrease between service entrance and exit audiograms, case history and configuration of hearing loss. The provider further explained that the VA hearing examination only tested to 4000Hz; however, the 2005 Institute of Medicine (ION) report, “Noise & Military Service” indicates that in order to document a characteristic “notch” associated with noise induced hearing loss during service the test should include measurements at and above 6000Hz. The private provider noted that puretone testing revealed a mild to moderate notched high frequency sensorineural hearing loss. The examiner concluded it is more likely than not that the Veteran’s hearing loss is related to service, based on the threshold shift between entrance and separation audiograms, case history, configuration of hearing loss, and the onset of tinnitus. In a March 2012 opinion restatement, the VA examiner again noted the Veteran’s active duty service exposed him to high risk noise levels, but found there is evidence the Veteran did not experience hearing loss during service. The examiner noted that the examiner in the prior VA examination did test the Veteran’s at frequencies beyond 4000 Hz, and there was not a “noise notch” present during the April 2011 VA examination. The examiner again concluded the Veteran had progressive hearing loss that began after service. The Board finds the Veteran’s statements regarding his hearing loss to be credible. While the Board acknowledges the VA examiner opinions, the record establishes that service connection is warranted. The examiners appear to have based the negative nexus opinion on the lack of documentation of hearing loss in the Veteran’s service treatment records during active duty service. However, in Hensley v. Brown, 5 Vet. App. 155, 159 (1993), the Court stated that [applicable VA regulations do] not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service.... Therefore, when audiometric test results at a veteran’s separation from service do not meet the regulatory requirements for establishing a “disability” at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. Id. at 159-60. In this case, the Veteran submitted evidence from a qualified medical expert linking his current bilateral hearing loss disability to his active duty service. The Veteran stated that he experienced noise exposure during service. See Layno v. Brown, 6 Vet. App. 465 (1994). His military records corroborate his assertions. Thus, the nexus requirement has been satisfied based on the private provider opinion and the third Shedden element has been met. Additionally, his post-service work history indicated little-to-no noise exposure, including working as a career counselor for the State of Missouri and only hunting a few times. After resolving all doubt in the Veteran’s favor, the Board finds the evidence supports a grant of service connection for a bilateral hearing loss disability, as there is competent and credible evidence of in-service noise exposure, differences in hearing acuity as reflected in the entrance and separation audiological testing, post-service bilateral hearing loss disability for VA compensation purposes, and little-to-no post-service intercurrent cause. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Keogh, Associate Counsel