Citation Nr: 18124038
Decision Date: 08/07/18	Archive Date: 08/03/18

DOCKET NO. 10-27 221
DATE:	August 7, 2018
ORDER
Entitlement to service connection for bilateral hearing loss is granted.
FINDING OF FACT
1.  The Veteran engaged in combat with the enemy during his Vietnam war era service. 
2. Resolving any reasonable doubt in favor of the Veteran, the Veteran’s bilateral hearing loss had its onset in, or is otherwise related to his active military service.
CONCLUSION OF LAW
The criteria to establish service connection for bilateral hearing loss have been met.  38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty in the United States Army from June 1968 to June 1971.  Service in the Republic of Vietnam is indicated by the record.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. 
The Veteran was afforded a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) in October 2013.  A transcript is associated with the claims folder.  Additionally, evidence has been associated with the Veteran’s claims folder included with a waiver of RO consideration.
The Board previously denied the Veteran’s claim of entitlement to service connection for hearing loss in a December 2016 decision.  The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court).  In December 2017, the Court issued a memorandum decision advising the Board to apply the combat presumption to the existence of hearing loss during service, not merely to the existence of acoustic trauma at the time.  The Court also advised that the Board erred by failing to consider McKinney v. McDonald when it determined that the presumption of soundness did not apply with respect to the Veteran’s left ear and the Court reversed the Board’s finding that the presumption of soundness did not apply and remanded the case.  The claim has now been returned to the Board for adjudication.

SERVICE CONNECTION
A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service.  38 U.S.C. §§ 1110, 1131.  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” - the so-called “nexus” requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).
Service connection may also be granted for a disease shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in-service.  38 C.F.R. § 3.303 (d).  Service connection for chronic disease may be granted if manifest to a compensable degree within one year of separation from service.  38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.
1.  Entitlement to service connection for bilateral hearing loss.
Upon review of the evidence of record, the Board finds that service connection for bilateral hearing loss is warranted. 
The Veteran has contended that he developed hearing loss as the result of noise exposure during service.  Specifically, he has asserted that he was exposed to hazardous noise, while serving in the Republic of Vietnam.  In particular, he indicates that he served as a fire control instrument repairman and was exposed to “daily combat missions using 155-millimeter howitzer and was exposed to the noise of those guns while in very close proximity to them”; and that he was exposed to very loud radio feedback evidencing the destruction of the target.  He says he did not wear hearing protection during service.  His medical records indicated that he noticed hearing loss since his service in Vietnam. 
The October 2014 VA QTC audiology examination revealed bilateral mild sensorineural hearing loss disability according to the clear, established requirements of 38 C.F.R. § 3.385. Thus, the existence of a current disability is undisputed for bilateral hearing loss. 
The Veteran’s service treatment records (STRs) are negative for any complaint, treatment, or diagnosis of hearing loss disability under § 3.385 in either ear.    At his June 1971 separation examination, the Veteran’s hearing was normal based on audiometric testing with puretone thresholds.  
The Board notes the Department of Defense’s Duty MOS Noise Exposure Listing indicates that an MOS as a fire control instrument repairman involved a “high” probability of noise exposure during service.  In-service hazardous noise exposure is therefore consistent with the circumstances of the Veteran’s duties in service and has already been conceded by the Board.  See 38 U.S.C. 1154 (a); 38 C.F.R. 3.303 (a); Veterans Benefits Administration (VBA) Fast Letter No. 10-35 (September 2, 2010).  
Furthermore, as a documented fire control instrument repairman who engaged in combat with the enemy during his active military service, hearing loss is consistent with the circumstances and conditions of that service.  It follows that his lay statements are sufficient to show the occurrence of hazardous noise exposure and acoustic trauma during in-service combat from mortars, gunfire, Howitzers, and radio feedback form bombs hitting targets.  See 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (d).  In fact, the Federal Circuit has held that the statutory combat presumption applies not only to whether the Veteran was exposed to acoustic trauma while on active duty, but also to whether symptoms of hearing loss were shown while on active duty.  Reeves v. Shinseki, 682 F.3d 988 (Fed. Cir. 2012).  The Federal Circuit determined that if in-service hearing loss, as opposed to just acoustic trauma, was established by way of the statutory combat presumption, the Veteran would then only have to show that his hearing loss disability incurred in service was a chronic condition that persisted beyond active service. Id.  Here, the Veteran has credibly stated he first noticed hearing loss in service and it has continued since that time. Thus, the Board finds in favor of the Veteran and accepts his own lay history as sufficient proof of an in-service incurrence of hearing loss.  38 U.S.C. 1154 (b); 38 C.F.R. § 3.303.
The Board acknowledges that post service medical treatment notes show the Veteran has maintained that he has had hearing loss since his service in Vietnam.  
The Board acknowledges that a VA audiology examiner in October 2014 opined that the Veteran’s current bilateral hearing loss was not caused by or a result of an event in military service.  The VA audiology examiner provided a simple rationale - since no sensorineural hearing loss disability was shown during service (as defined by VA under 38 C.F.R. § 3.385), there could be no nexus to military noise exposure during service.  Moreover, the examiner noted the absence of any report or treatment of hearing loss until 2009, as well as a treatment note from April 2012 of an audio examination at the VA in which the examiner determined findings of normal hearing.  However, the rationale of the VA examiner is flawed.  The Board emphasizes that to establish service connection, it is not required that a hearing loss disability by the standards of 38 C.F.R. § 3.385 be demonstrated during service, although a hearing loss disability by the standards of 38 C.F.R. § 3.385 must be currently present, and service connection is possible if such current hearing loss disability can be adequately linked to service.  Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).  That is, a claimant may establish direct service connection for a hearing disability initially manifest several years after separation from service on the basis of evidence showing that the current hearing loss is causally related to injury or disease suffered in service.  Hensley v. Brown, 5 Vet. App. 155, 164 (1993).  See also 38 U.S.C. 1113 (b); 38 C.F.R. 3.303 (d).  Therefore, the lack of evidence of bilateral hearing loss per § 3.385 during active service is not fatal to the Veteran’s claim; it is merely one factor to be considered.  Additionally, the opinion was based upon the inaccurate factual premise that the Veteran’s April 2012 VA audio treatment note showed normal hearing in the right ear, when it actually showed mild hearing loss.  Moreover, the examiner failed to explain why not seeking treatment prior to 2009 is relevant to the nexus opinion rendered.
Therefore, the Board finds the Veteran’s lay assertions both competent and credible as to his in-service and continuing post-service hearing loss symptoms, as well as his in-service hazardous noise exposure with acoustic trauma during his combat tour in Vietnam.  See 38 C.F.R. § 3.159 (a)(2); Barr, 21 Vet. App. at 307-09.  The Veteran has also credibly denied any post-service noise exposure.  See October 2013 VA Board hearing.  Although a nexus relationship has not been demonstrated through competent medical opinion evidence, the absence of a “valid medical opinion” is not an absolute bar to service connection, particularly where, as here, the lay evidence of record is sufficient to satisfy the final nexus prong.  Davidson v. Shinseki, 581 F.3d at 1316.
In making this favorable determination for the Veteran, the Board has considered that evidence is rarely neat and tidy.  Therefore, it is expected that the Board will at times have to construct a complete narrative by filling in gaps with inferences and common sense.  There is no requirement that all factual questions be resolved by reliance on direct, rather than circumstantial, evidence.  The fact finding of the Board in this case is entitled to deference and is not clearly erroneous.  To the extent that the Board made inferences and considered circumstantial evidence in its analysis of the evidence, this type of reasoning is well within the discretion of a fact finder.  Although another fact finder may have declined to make the same inference, that does not mean that the Board in the present case is clearly erroneous.  Bastien v. Shinseki, 599 F.3d 1301, 1306 (Fed. Cir. 2010) (“The evaluation and weighing of evidence and the drawing of appropriate inferences from it are factual determinations committed to the discretion of the fact finder.”). 
Accordingly, resolving doubt in the Veteran’s favor, the evidence supports service connection for bilateral hearing loss.  38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 54.
 
BETHANY L. BUCK
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J. Whitley, 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

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