Citation Nr: 20030148 Decision Date: 04/29/20 Archive Date: 04/29/20 DOCKET NO. 17-49 752 DATE: April 29, 2020 ORDER Service connection for bilateral hearing loss is granted. FINDING OF FACT Resolving all doubt in the Veteran's favor, bilateral hearing loss is related to service. CONCLUSION OF LAW The criteria for service connection for hearing loss have been approximated. 38 U.S.C. §§ 1110, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from January 1983 to April 1983 with additional periods of service in the National Guard. This matter come before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A copy of the transcript has been associated with the electronic claims file. 1. Bilateral Hearing Loss. Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). An organic disease of the nervous system, which includes sensorineural hearing loss, is a "chronic disease" listed under 38 C.F.R. § 3.309(a). Fountain v. McDonald, 27 Vet. App. 258, 275-76 (2015). Therefore, the provisions of 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such during active service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected unless they are clearly attributable to intercurrent causes. Generally, if a condition noted during active service is not shown to be chronic, then, a "continuity of symptoms" after service is required to establish service connection. 38 C.F.R. § 3.303(b). The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 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. The August 2016 VA examination reflected auditory thresholds at or above 40 decibels at 3000 and 4000 Hz in the left ear and 2000, 3000, and 4000 Hz in the right ear. Thus, the Veteran has a current disability. The Veteran underwent another VA examination in August 2017. However, the examiner found the results were not reliable and, as such, the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The Veteran’s August 1982 examination is silent for any hearing loss disabilities. The Veteran did not undergo a separation examination. As previously stated, the Veteran underwent VA examination in August 2016 to determine the nature and etiology of the hearing loss and tinnitus. The Veteran reported noise exposure during service. The VA examiner diagnosed the Veteran with bilateral hearing loss and opined that it was at least as likely as not caused by his military service. The rationale provided was that the Veteran had multiple examinations after service that did not show hearing loss. An April 2018 report of D.D., Au.D. noted the Veteran had hearing loss that was longstanding of gradual onset. The assessment was asymmetrical sensorineural hearing loss which was just as likely as not noise induced in nature. In February 2020, the Veteran testified in support of the claim. He stated that his hearing loss began during service and that he noted it immediately. His spouse also testified that she knew the Veteran since he was in service and noticed decreased hearing since at least 1989. He also provided several lay statements attesting to his noise exposure during service and decreased hearing after service. In March 2020, the Veteran underwent a private examination. The private examiner reviewed the Veteran’s account of noise exposure, examined the Veteran and opined that the Veteran’s bilateral hearing loss was more likely than not incurred in service. This audiologist explained that the Veteran’s degree and pattern of sensorineural hearing loss was consistent with noise exposure. There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim. Specifically, the Board could seek further examination to clarify and definitively opine on the nature and etiology of the current bilateral hearing loss. However, the competent evidence as to the etiology of the Veteran's hearing loss is in conflict. While the August 2016 VA examiner concluded that the Veteran's hearing loss was not related to service, the March 2020 private examiner concluded it was. Further, the Veteran has explained that the decreased hearing actually began during service as a result of noise exposure and became progressively worse over time. Given the existence of evidence both for and against the claim, the Board finds that the evidence is in relative equipoise as to whether the Veteran's hearing loss arose during service. Upon resolution of all reasonable doubt in the Veteran's favor, the Board concludes that service connection is now warranted for hearing loss. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Furthermore, given the favorable outcome in this decision that represents a full grant of the issues on appeal, further explanation of how VA has fulfilled the duties to notify and assist is not necessary. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Teague, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.