Citation Nr: 21025411 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 17-30 484 DATE: April 28, 2021 ORDER Service connection for bilateral hearing loss is granted. FINDING OF FACT The Veteran’s sensorineural hearing loss was noted in active service, and there has been a continuity of symptomology since separation. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1967 to August 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in March 2021. A transcript of the hearing is of record. Service Connection Service connection generally will be awarded when a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § § 1110, 1131; 38 C.F.R. § 3.303(a). 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). To establish service connection on a direct basis, the evidence must show: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link between the current disability and the disease or injury incurred or aggravated in service (the “nexus” element). Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). For the chronic diseases listed in 38 C.F.R. § 3.309(a), including sensorineural hearing loss as an organic disease of the nervous system, service connection may alternatively be established with evidence of chronicity of the disease during service or during a presumptive period following service separation. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015). For conditions noted during service (or in the presumptive period) but not shown to be chronic at the time, a continuity of symptomatology after service is required to support the claim. 38 C.F.R. § 3.303(b). When chronicity or continuity is established, subsequent manifestations of the same chronic disease at any later date, no matter how remote in time from the period of service, will be service connected unless clearly attributable to causes unrelated to service (“intercurrent” causes). Id. In addition, where a veteran served continuously for 90 days or more during a period of war, or after December 31, 1946, there is a presumption of service connection for organic disease of the nervous system, including sensorineural hearing loss, if the disease manifested to a degree of 10 percent or more within one year from the date of separation from service, even if there is no evidence of the disease during the service period itself. 38 U.S.C. § § 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). This presumption may be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (when the evidence supports the claim or is in relative equipoise, the claim will be granted). Hearing Loss For VA compensation purposes, hearing loss is defined as a disability when the auditory puretone threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory puretone 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 threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The auditory thresholds set forth in § 3.385 establish when hearing loss is severe enough to constitute a disability. Hensley 5 Vet. App. at 159. Here, the December 2016 VA examination report shows puretone thresholds based on audiometric testing that satisfy the criteria for a hearing loss disability in both ears. The examiner diagnosed sensorineural hearing loss. The Veteran’s sensorineural hearing loss was noted in active service. Preliminarily, the October 1966 enlistment examination report shows that his hearing was found to be normal. A stamp on the report dated October 1967 indicates that no additional defects were discovered on re-examination at entrance. Therefore, his hearing is presumed sound at entry. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304. The available service treatment records show that in January 1970, more than two years after he entered service, he was placed on profile for sensorineural hearing loss, with a restriction that he was not to have an assignment involving habitual or frequent exposure to loud noises or firing of weapons. The August 1970 separation examination report also reflects a diagnosis of high frequency sensorineural hearing loss, and notes the assignment restriction. Because his hearing was sound at entry, the hearing loss noted during service is deemed incurred in service. The Board notes that audiometric testing results provided in the August 1970 separation examination report are within normal limits. See Hensley, 5 Vet. App. at 159. Nevertheless, the diagnosis of sensorineural hearing loss and the physical profile constitute probative evidence that the Veteran was found to have sensorineural hearing loss in service. Indeed, the separation examination report reiterates the diagnosis of sensorineural hearing loss, notwithstanding the normal audiogram at separation. Significantly, it seems likely there are missing service treatment records. The service treatment records in the claims file are those furnished by the National Personnel Records Center (NPRC) to VA in December 2013, in response to VA’s request for the complete medical and dental records and entire personnel file at the NPRC. The NPRC stated that all available requested records were sent to VA. See December 2013 VA Form 3101. These records only consist of the enlistment examination report, the separation examination report, and the January 1970 physical profile for hearing loss. In other words, there is not a single record reflecting treatment during service, only the examination reports and physical profile. Indeed, there are also no dental or immunization records, or records of laboratory results, among the service treatment records furnished by the NPRC. Because such records are clearly missing, it seems likely that reports of audiometric testing during service showing abnormal hearing may also be missing, given the diagnosis of sensorineural hearing loss in the January 1970 physical profile. The Board also notes that 38 C.F.R. § 3.385, which defines the criteria for establishing a hearing loss disability, does not preclude service connection for a current hearing loss disability where hearing was within normal limits on audiometric testing at separation from service. Hensley, 5 Vet. App. at 159. “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 160. In this case, the Board resolves any reasonable doubt in favor of the Veteran, and finds that sensorineural hearing loss was noted in active service, regardless of the normal audiometric testing results recorded in the separation examination. The record also supports a finding of significant noise exposure in service. The Veteran’s military occupational specialty was as a power generator equipment operator, and he served for a year in the Republic of Vietnam, as shown in the service personnel records. At the March 2021 hearing, he testified that the generators were very loud and he had no hearing protection. Based on the places, types, and circumstances of his service, the Board finds he had significant noise exposure. See 38 C.F.R. § 3.303(a). Finally, there is competent and credible evidence of a continuity of symptomology. At the March 2021 hearing, the Veteran stated that other service members commented to him about his hearing loss, and that he gradually noticed it himself. When asked if his hearing problems continued to the present, he responded, “Yes.” These statements are competent, and are supported by the diagnosis of sensorineural hearing loss in service and the fact he was placed on profile for his hearing loss. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Accordingly, resolving any reasonable doubt in favor of the Veteran, the Board finds that he had a continuity of sensorineural hearing loss symptoms after service. Because his sensorineural hearing loss was noted in service, service connection is established for hearing loss as a chronic disease in accordance with 38 C.F.R. § 3.303(b) without need of direct evidence of a medical nexus. See Walker, 708 F.3d at 1338. The Board discounts the December 2016 VA medical opinion, as it does not consider the diagnosis of sensorineural hearing loss in service, and is based solely on the normal entrance and separation audiograms. It also assumes that the Veteran’s hearing loss did not manifest until many years after service. In sum, resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for service connection for bilateral hearing loss are satisfied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rutkin, 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.