Citation Nr: 21001623 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 19-32 553A DATE: January 11, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT It is as likely as not the Veteran’s bilateral hearing loss is the result of hazardous noise exposure during his service and consequent injury (acoustic trauma). CONCLUSION OF LAW The criteria are met for entitlement to service connection for bilateral hearing loss. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1962 to September 1964. In support of this claim, the Veteran recently testified at a hearing in January 2021 before the undersigned Veterans Law Judge of the Board. The Board has advanced his appeal on the docket because of his age. In general, establishing service connection requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a correlation (“nexus”) between the disease or injury in service and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). For some “chronic diseases,” (such as sensorineural hearing loss especially since an organic disease of the nervous system) presumptive service connection is available. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). For “chronic disease” shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected – unless clearly attributable to intervening (“intercurrent”) causes. 38 C.F.R. § 3.303(b). For the showing of a chronic disease in service, or during a presumptive period, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. The term “chronic disease,” whether shown during service or manifesting to a compensable degree within a presumptive period following service (which is one year for sensorineural hearing loss), only applies to those disabilities specifically listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).   For the purpose of applying the laws administered by VA, impaired hearing is considered to be a ratable 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 auditory 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. Private records in the file establish the Veteran has sufficient hearing loss in each ear, so bilaterally, to in turn be considered a ratable disability for VA compensation purposes – meaning sufficient hearing loss in each ear to satisfy the threshold minimum requirements of § 3.385. See, e.g., August 2019 Dr. Waki record and September 2019 Dr. Williams record. So, there is no disputing he has this claimed condition. Resolution of this appeal therefore turns, instead, on whether there also is the required attribution of this disability to his military service. See Watson v. Brown, 4 Vet. App. 309, 314(1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred [or aggravated] in service."). During his recent January 2021 virtual hearing before this Board, the Veteran testified that he flew on investigative missions while in service acting as a flight surgeon (even though he admittedly was not one, instead, a general medical officer), and that on one occasion in particular his helicopter went down because he thinks the gas tank exploded. He added that he was “totally deaf” for about 2 to 3 days, but then his hearing “came back”, although it was never again normal and has continued to get progressively worse during the many years since his service, as he has gotten older. The Veteran’s military occupational specialty (MOS) was general medical officer, as he has contended, although, according to his DD Form 214, he did not serve in a theater of war. The Veteran’s military evaluation reports do not reflect that he was exposed to consistently loud noises, and the Board does not find that, as a general physician, that necessarily occurred. Nonetheless, he is competent to state that he was exposed to loud noise or even an explosion in service while in Korea, and there is no inherent reason to question his credibility concerning this assertion. Moreover, the Board must consider the circumstances, conditions, and hardships of his service in deciding his appeal of this claim. See 38 U.S.C. § 1154(a). The earliest clinical evidence of hearing loss is not for many decades after the Veteran’s separation from service, and this tends to refute the notion that his current hearing loss dates back to his service or is the result of his service, especially when also considering that even he acknowledges his hearing returned some 2-3 days after the incident in service – although, to reiterate, he also said it never again has been the same (meaning entirely normal) as he has aged. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). See also Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence showing continuity of symptomatology and had failed to account for the lengthy time period following his service during which there was no clinical documentation of the now claimed disorder). That notwithstanding, the Board also sees that the Veteran’s post-service occupation, so as a civilian, also has been as a doctor, which, as already explained, is not the type of profession that routinely is associated with exposure to excessively loud noise But there equally is no suggestion he participates in any other activity, including recreationally, which might have tended to expose him to a lot of excessively loud noise, such as hunting, pilot, heavy machine operator, or the like. Essentially, then, he has credibly testified of having sustained relevant injury (acoustic trauma) during his military service, and there is no similar indication of said trauma additionally during the many years since conclusion of his service.   As well, and as he pointed out during his recent hearing, the claims file also includes August 2019 correspondence from Dr. J. Williams who concluded that it is his medical opinion that the Veteran’s sensorineural hearing loss is related to his military service. In addition, September 2019 correspondence from Dr. Vipond (Diplomate, American Board of Otolaryngology) reflects Dr. Vipond’s opinion that it is likely that a large component of the Veteran’s hearing loss is due to cochlear trauma sustained in an explosion in service in 1963. Finally, while the Veteran is not an audiologist or otolaryngologist (meaning ear, nose and throat (ENT) specialist), as an “M.D.” (so physician no less), he still has well more training and expertise than a mere layman in medical matters and is certainly competent to state that he could not hear in service and had less hearing acuity in service even after his hearing returned and that this has continued in the many years since his service. His contention as to the etiology of his hearing loss is supported by the other medical opinions of record – including as mentioned the one from an otolaryngologist (so ENT specialist). Thus, service connection for the Veteran’s bilateral hearing loss is warranted. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Wishard 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.