Citation Nr: 19123773 Decision Date: 03/29/19 Archive Date: 03/29/19 DOCKET NO. 17-01 082 DATE: March 29, 2019 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT The probative evidence of record is at least in equipoise as to whether the Veteran’s bilateral hearing loss is a result of service or etiologically related to in-service noise exposure. CONCLUSION OF LAW With resolution of reasonable doubt in the Veteran’s favor, the criteria for a grant of service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1969 to January 1971. Entitlement to service connection for bilateral hearing loss The Veteran contends that he has bilateral hearing loss due to his active duty service, including noise from serving as an infantryman with exposure to weapon noise without ear protection. The Board notes that the Veteran earned a Combat Infantryman Badge, as well as an Expert badge for M-14 and M-16, Sharpshooter for M-16, and a First-Class Gunner (M-60). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The presumption of service connection applies to anyone who served on active duty for 90 days of active, continuous service. 38 C.F.R. § 3.307(a)(1); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). Post-service development of an “organic disease of the nervous system” to a degree of 10 percent within one year from the date of termination of such service, establishes a rebuttable presumption that the disease was incurred in service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Sensorineural hearing loss is an “organic disease of the nervous system and is subject to presumptive service connection” under 38 C.F.R § 3.309(a). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of those frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran was afforded a VA examination for his bilateral hearing loss claim. At the Veteran’s February 2015 VA examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 65 60 45 LEFT 20 20 45 40 40 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 96 in the left ear. The Veteran’s level of hearing loss meets the threshold set forth in 38 C.F.R. § 3.385 to be considered a disability for VA purposes. The examiner found that the Veteran has bilateral sensorineural hearing loss but opined that it is less likely than not that the Veteran’s hearing loss is related to his military service. The examiner’s rationale was that the Veteran’s hearing was normal at separation and that research does not support the concept of delayed onset of hearing loss. At the VA examination, the Veteran stated that he has difficulty hearing conversations and watching television, as well as difficulty hearing in crowds or places with background noise. The Veteran stated that he served in the United States Army and experienced excessive noise as an infantryman without hearing protection. He denied occupational or recreational noise exposure post-service. The Veteran reported that the onset of his hearing loss was after returning from Vietnam. Additionally, the Veteran stated that his bilateral hearing loss began while he was in service in his July 2014 application. The Veteran’s December 2016 VA Form 9 also reflects his assertion that his current hearing loss is a result of loud noise exposure during service and that his symptoms began during service. The Board finds the Veteran competent and his statements credible. The Board finds the Veteran’s lay statements regarding the onset and continuity of his bilateral hearing loss to be both competent and credible. The Board finds that the February 2015 VA opinion is inadequate because it relies entirely on the fact that hearing was normal at separation from service. For this reason, the Board finds that the Veteran’s reports of continuity of symptomatology for hearing loss is the most probative evidence of record with regard to the etiology of the Veteran’s hearing loss. (Continued on the next page)   Thus, a grant based on the continuity of symptomatology is warranted for bilateral hearing loss. Accordingly, the Board finds that the evidence at minimum gives rise to reasonable doubt. Therefore, service connection for bilateral hearing loss must be granted. 38 U.S.C. § 5107(b). D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Fowler, Associate Counsel