Citation Nr: 18124080
Decision Date: 08/03/18	Archive Date: 08/03/18

DOCKET NO. 13-20 205
DATE:	August 3, 2018
ORDER
Entitlement to service connection for bilateral hearing loss is granted.
FINDING OF FACT
Resolving reasonable doubt in favor of the Veteran, he has a current bilateral hearing loss disability for VA compensation purposes that is related to his in-service noise exposure.
CONCLUSION OF LAW
The criteria for service connection for a bilateral hearing loss disability are met.  38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from November 1967 to November 1970. 

This case is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision dated October 2011 by a Regional Office (RO) of the Department of Veterans Affairs (VA).
In April 2014 the Veteran testified before the undersigned Veterans Law Judge in a videoconference hearing.  A copy of the hearing transcript has been associated with the claims file.
The Board remanded this case in April 2015 and January 2017.
Laws and Regulations
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).
To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).
Certain diseases, to include sensorineural hearing loss, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty.  38 U.S.C. § 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). 
Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden elements for certain chronic disabilities is through a demonstration of continuity of symptomatology. 
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the veteran.  38 U.S.C. § 5107(b).
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, 4000 Hertz is 40 decibels or greater; or when the auditory 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 Tests are less than 94 percent.  38 C.F.R. § 3.385.  Additionally, it is noted that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  See Hensley v. Brown, 5 Vet. App. 155, 157 (1993).
Factual Background and Analysis
The Veteran has claimed that he has a hearing loss related to service.  He argues that he was exposed to loud noises while deployed in Vietnam.  Service personnel records reflect that the Veteran was deployed to Vietnam, and he received the Vietnam Service medal and the Vietnam Campaign medal.  
The record indicates the Veteran currently has bilateral hearing loss for VA compensation purposes.  Notably, the Veteran was diagnosed with sensorineural hearing loss in both ears in the July 2015 VA examination, as well as in prior VA examinations.  The Veteran has also been diagnosed with hearing loss by a private provider.  Hence, the first Shedden element has been met. 
The July 2015 VA examiner noted that the Veteran’s entrance examination in August 1967 reflected normal hearing in both ears.  The examiner notes that because the entrance examination was conducted prior to November 1967, it is presumed to use ASA standard instead of the ISO standard used at the time of the Veteran’s separation examination in September 1970.  When converting the August 1967 entrance examination audiological results to ISO standard, there is a significant (15 dB or greater) shift in threshold at 4000 Hz in the right ear during the Veteran’s active duty service.  The examiner notes that the shift in threshold supports the presence of a noise injury, though the Veteran’s hearing remained in the normal range at the time of separation. 
Based on the Veteran’s credible reports of being exposed to small arms and mortar fire in Vietnam and the significant shift in threshold during service as documented by the service treatment records, the second Shedden element has been met and exposure to hazardous levels of noise during service has been conceded.  This is consistent with the July 2015 VA examiner who found the Veteran’s in-service noise exposure was as likely as not related to his present tinnitus, and in-service noise exposure was expressly conceded. 
Therefore, the question to be decided in the present appeal is whether the current bilateral hearing loss disability is associated with the Veteran’s active duty service. After resolving all reasonable doubt in favor of the Veteran, the Board finds service connection for bilateral hearing loss is warranted.  
The Board acknowledges the July 2015 VA examiner opined it was less likely than not that the Veteran’s bilateral hearing loss was caused by or the result of his military service.  The Board again notes that the July 2015 VA examiner found it was more likely than not that the Veteran’s tinnitus was related to his service.  The examiner also noted the Veteran’s service treatment records suggest a change in the Veteran’s hearing acuity relative to their initial baseline thresholds.  The examiner’s rationale for a negative relationship between service and the Veteran’s present hearing loss was based on the Veteran having normal hearing loss at the conclusion of service, and there being an insufficient scientific basis for finding that permanent hearing loss directly attributable to noise exposure will develop long after the noise exposure occurred. 
However, the absence of documented hearing loss is service is not fatal to a service connection claim for bilateral hearing loss.  See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  The Board also notes that the Veteran has demonstrated reports of continuous bilateral hearing loss symptoms since his separation from service.  During the April 2014 hearing, the Veteran testified he has experienced hearing loss since shortly after the conclusion of service, dating back to the 1970s. The Board finds the Veteran’s reports regarding his longterm hearing loss to be credible.  Hence, limited weight is afforded to the negative nexus opinion in the July 2015 VA examination because it acknowledged the Veteran’s service treatment records contain audiological testing consistent with a noise injury during service, but did not address the Veteran’s reports that he has been experiencing hearing loss since shortly after his conclusion of service. 
The Board affords little weight to the negative nexus opinion in the October 2011 VA addendum opinion because its rationale was based on the Veteran not being exposed to hazardous levels of noise in service based on his occupation as a microwave systems repairman.  Noise exposure during service has since been conceded.  Notably, in the August 2011 VA examination, the examiner provided a positive nexus opinion, and concluded it was as likely as not that the Veteran’s hearing loss was caused by service due to an absence of significant noise exposure following military service and that the Veteran’s current hearing loss (configuration and degree of loss) is consistent with a noise induced hearing loss.  The examiner also concluded the Veteran’s claimed constant tinnitus is at least as likely as not related to his hearing loss.  The Veteran is presently service connected for tinnitus. 
Based on the Veteran’s credible reports of noise exposure in service and his reports of experiencing hearing loss issues since shortly after service, his service treatment records indicating a significant shift in threshold consistent with a noise injury during service, the lack of significant noise exposure since service, and the August 2011 VA examiner’s finding that the configuration and degree of the Veteran’s hearing loss is consistent with noise induced hearing loss, the Board finds that there is an approximate balance of positive and negative evidence regarding the question of whether the Veteran has a current bilateral ear hearing loss disability that was caused by his service.
 
In sum, for the reasons and bases discussed above, the Board has resolved doubt in favor of the Veteran, and service connection for bilateral hearing loss is granted. See 38 U.S.C. § 5107(b).
 
MICHAEL LANE
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	N. Keogh, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency

 
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