Citation Nr: 20034429 Decision Date: 05/18/20 Archive Date: 05/18/20 DOCKET NO. 15-43 001 DATE: May 18, 2020 ORDER Service connection for right ear hearing loss disability is granted. FINDING OF FACT The preponderance of the evidence shows the Veteran’s right ear hearing loss began in service and has continued since service. CONCLUSION OF LAW The criteria for service connection for right ear hearing loss have been met. 38 U.S.C. § 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION Veteran served active duty in the military from March 1974 to November 1980. The Veteran appeared for a hearing before a Veterans Law Judge in January 2019. The Veterans Law Judge, who conducted the hearing, has since retired. The hearing transcript is associated with the claims file. The Veteran was provided notice of the Veterans Law Judge’s retirement in February 2020. The February 2020 notice requested a response within 30 days if the Veteran desired another hearing. Since the Veteran did not respond to the February 2020 notice within 30 days, it is assumed that the Veteran did not want another hearing. Service connection may be granted for a disability or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection for a present disability the claimant must show: (1) the existence of a present disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship or “nexus” between the present disability and the in-service injury or disease. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Sensorineural hearing loss is a chronic disease of the organic nervous system and may qualify for this presumption. The Veteran contends her right ear hearing loss is the result of noise exposure in service. The Board finds the preponderance of the evidence shows the Veteran’s right ear hearing loss began in service and continued since service. The Veteran has right ear hearing loss for VA purposes as evidenced by a January 2019 private audiology treatment record, an October 2011 VA outpatient hearing exam, and a May 1988 private audiology treatment record. See 38 C.F.R. § 3.385. Sensorineural hearing loss is also a condition of the organic nervous system which is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. Veteran contends that she had significant noise exposure in service as a member of the military police. Service personnel records confirm her military occupational specialty was military police. The Board finds this report of significant noise exposure to be consistent with the facts and circumstances of her service. Service treatment records show that diminished hearing in the right ear was noted during active duty service. A 1979 audiogram included in the service treatment records notes hearing impairment at high frequencies. Service treatment records further note in an August 1980 Neurology Consultation Report that the Veteran had diminished hearing in the right ear. Post-service treatment records continue to reflect hearing impairment during the applicable presumptive period, and for decades after. September 1981 and October 1986 VA treatment notes documented diminished right ear hearing. A May 1988 private treatment audiogram reflects right ear hearing loss arising to the level of a disability for VA purposes and notes that the Veteran had a history of noise exposure in the service. A 2016 VA exam found right ear hearing loss arising to the level of a disability for VA purposes but contained no nexus opinion. And, a January 2019 private treatment record also found right ear hearing loss arising to the level of a disability for VA purposes and a favorable nexus that the Veteran’s right ear hearing loss was “at least as likely as not (50% probability or greater)…caused by or a result of military noise exposure.” The Board finds these records to be competent and credible and gives them great probative weight as they reflect consistent evidence of right ear hearing loss over multiple decades and are consistent with the Veteran’s lay contentions of noise exposure in service. It is clear that continuity of symptomatology is established; therefore, Veteran’s right ear hearing loss is presumed to be service connected since it manifested during service and continued for decades thereafter. Since continuity of symptomatology applies under 38 C.F.R. § 3.309, a service connection nexus is presumed without the need for further explanation. Nonetheless, the only negative nexus opinion found in the claims file was the October 2011 VA examiner’s report which found hearing loss in the right ear arising to the level of a disability for VA purposes but stated that no nexus existed because the Veteran had “normal hearing thresholds at separation from service in 1980.” In Hensley v. Brown, 5 Vet. App. 155, 157 (1993), the court held that regulations did not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service. Here, the VA examiner failed to address the Veteran’s history of hearing impairment in the report. The Board accords little probative value to the VA examiner’s opinion. The Board finds continuity of symptomatology of right ear hearing loss has been shown to establish service connection. Accordingly, entitlement to service connection for right ear hearing loss is warranted. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Palombi, 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.