Citation Nr: 21030841 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 18-07 368 DATE: May 19, 2021 ORDER Service connection for bilateral hearing loss is granted. FINDING OF FACT The Veteran's bilateral hearing loss had its onset in service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from April 1965 to January 1969, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2017 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). Service connection for bilateral hearing loss Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted through the application of statutory presumptions for chronic conditions. See 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303 (b), 3.307(a)(3), 3.309(a). "Other organic diseases of the nervous system," which may include sensorineural hearing loss, are classified as "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) also applies. 38 C.F.R. § 3.307; Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013). Presumptive service connection for "chronic diseases" must be considered on three bases: chronicity during service, continuity of symptomatology since service, and manifestations within one year of the claimant's separation from service. 38 C.F.R. § 3.303(b); Walker, 708 F.3d at 1336-38. The application of these presumptions operates to satisfy the "in-service incurrence or aggravation" element and establish a nexus between service and a current disability, which must be found before entitlement to service connection can be granted. Determinations as to service connection will be based on a review of the entire evidence of record, to include all pertinent medical evidence. VA must also consider all favorable lay evidence of record. See 38 U.S.C. § 5107(b); see also Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (a Veteran is competent to report on that of which he or she has actually observed and is within the realm of his or her personal knowledge). 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 (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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 (2017). Notably, however, "section 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service." Hensley v. Brown, 5 Vet. App. 155, 159 (1993). "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. The Veteran contends that his bilateral hearing loss is due to exposure to loud noise in service and that the disability became manifest during service. The Veteran reports serving in the engine of a ship while on active duty in the Navy, being tasked with getting rust out of a tank using a pneumatic chipping tool and also being exposed to 50 caliber machine guns without hearing protection. See September 2013 Statement in Support of Claim. As the RO has already acknowledged, the Veteran shows that the Veteran was exposed to significant acoustic trauma in service. In this regard, the Veteran reports that as an Engineman, this primary responsibility was the repair and maintenance of engines. His duties on board ships included being in charge of the auxiliary engine rooms, which housed generators that were running almost constantly. Additionally, the Veteran reported exposure to small arms fire, automatic weapons fire and concussion grenades without having the benefit of hearing protection. See November 2016 Medical Treatment Record Non-Government Facility. The Veteran underwent a VA hearing loss examination in October 2013. The Veteran was diagnosed with hearing loss bilaterally. While acoustic trauma in service was conceded, the VA examiner opined that Veteran's separation examination showed hearing within normal limits at 500-4000 Hz, with no change from his induction exam; therefore it was held less than likely that his hearing loss was due to acoustic trauma suffered during his military duty. See October 2013 VA Hearing Loss Examination. The Veteran was afforded another VA hearing loss examination in December 2016. Based on Puretone thresholds testing, and speech discrimination score of 92 percent for the right ear and 96 percent for the left ear, the Veteran was again diagnosed with bilateral hearing loss. The VA examiner noted that that there was a permanent positive threshold shift in both ears that was greater than normal measurement variability at any frequency between 500 and 6000 Hz. However, the VA examiner opined for a negative nexus opinion and held that Veteran's separation examination showed hearing within normal limits at 500-6000 Hz, with no change from his enlistment exam. The VA examiner also concluded that audiograms showed normal hearing in 1991 and hearing loss was first diagnosed in 2000. Therefore, it was held that his hearing loss is less than likely due to acoustic trauma suffered during service. See December 2016 VA Hearing Loss Examination. To supplement his claim, the Veteran provided a private medical nexus opinion from an audiologist. See November 2016 Private Medical Opinion. The audiologist stated noise damage is cumulative across a person's life and the evidence of that damage is not always immediately identifiable. The audiologist opined that it is reasonable to believe that the noise exposure the Veteran experienced on ship in the Navy set the foundation for the severe noise induced hearing loss he experiences now. During his post-service occupation as a firefighter, he was afforded appropriate hearing protection; therefore, the noise exposure while on active duty played a significant role in his current hearing loss disability. See Id. The Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In this case, the Board finds the Veteran is competent to report regarding the symptoms he experienced, and the Board finds his testimony credible. See also Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau, 492 F.3d 1372. Though service treatment records are silent for complaints of hearing loss, when a condition may be diagnosed by its unique and readily identifiable features, as is the case with hearing loss, the presence of the disorder is not a determination "medical in nature," and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 305 (2007); Charles v. Principi, 16 Vet. App. 370 (2002). Here, given the Veteran's in-service noise exposure, his current diagnosis of bilateral hearing loss for VA compensation purposes and the medical opinions of record, and resolving all reasonable doubt in his favor, the Board finds that service connection for bilateral hearing loss is warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zarar Ahmed, Attorney Advisor 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.