Citation Nr: 1749041	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  13-14 937	)	DATE

On appeal from the
Department of Veterans Affairs Regional Office in Des Moines, Iowa


Entitlement to service connection for bilateral hearing loss.


Appellant represented by:	Disabled American Veterans


The Veteran


C. Banks, Associate Counsel


The Veteran had active duty from December 1978 to March 1979.   

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa.

This appeal was remanded in April 2015 and again in August 2015 for additional development.  The development has been completed, and the case has been returned to the Board.

The Veteran testified in a Video Conference hearing before a Board Veterans Law Judge (VLJ) in August 2015.  That VLJ is no longer employed by the Board, and the Veteran was notified of that fact and his right to another hearing on that basis in September 2017.  No response was received from the Veteran, so the Board hereby proceeds with adjudication of this appeal. 


The Veteran's bilateral hearing loss was at least as likely as not incurred as due to service.


The criteria for service connection for bilateral ear hearing loss are met.  38 U.S.C.A. §§ 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2016).


Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303.  In order to establish direct service connection for a disability, there must be: (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury incurred, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); Pond v. West, 12 Vet. App. 341, 346 (1999).

For the purposes of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of those frequencies 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, and higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

The Veteran claims entitlement to service connection for bilateral hearing loss, which, he claims, he incurred during his six years of service in the United States Army Reserve (Reserve) as a result of his noise exposure while in the military, including when working as a chef near a cannon and when participating in drills at the firing range.  See, e.g., VA Form 21-4138, Statement in Support of Claim, received October 12, 2012; VA Form 9, Appeal to Board of Veterans' Appeals, received May 22, 2013.  

While the claims file contains unfavorable VA nexus opinions from January 2012 and March 2016, there is also a private audiological opinion from August 2015 indicating that more likely than not that the bilateral hearing loss was related to service in the military.  The examiner, who conducted full audiological testing and considered the history of the Veteran's disability, noted that the hearing loss was multifactorial.  The Board notes that the subsequent March 2016 VA examination report did not specifically address this favorable opinion, and the Veteran is separately service connected for tinnitus as due to noise exposure in service.  

On balance, the Board finds that the private opinion and the Veteran's competent lay testimony are of at least equal probative value to the cited unfavorable VA opinions, particularly in light of the grant of service connection for tinnitus.
Accordingly, the Board finds that it is at least as likely as not that the Veteran's bilateral hearing loss was incurred as a result of service.  Thus, the Veteran is entitled to service connection for bilateral hearing loss.  38 U.S.C.A. § 5107(b).  In light of this grant, no further discussion of VA's duties to notify and assist this Veteran is necessary, as the Board's determination is fully favorable.


Entitlement to service connection for bilateral hearing loss is granted.

Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


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