Citation Nr: 18123971
Decision Date: 08/03/18	Archive Date: 08/03/18

DOCKET NO. 15-17 034
DATE:	August 3, 2018
ORDER
Service connection for bilateral hearing loss is granted.
FINDINGS OF FACT
1. The Veteran has a current disability of bilateral sensorineural hearing loss (SNHL).
2. The Veteran had exposure to loud noise (acoustic trauma) in service.
3. Symptoms of bilateral hearing loss have been continuous since service separation.
CONCLUSION OF LAW
The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1112, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385.
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veteran, who is the Appellant, served on active duty from March 1984 to October 1989, and from March 1990 to January 1992.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision from the Regional Office (RO), which, in pertinent part, denied reopening of service connection for bilateral hearing loss.  A July 2015 Board Decision subsequently granted reopening of service connection for bilateral hearing loss and remanded the issue for additional development.
This case was previously before the Board in August 2017 and April 2018, where the issue on appeal was remanded to obtain addendum VA medical opinions and outstanding VA treatment records.  While cognizant of its responsibilities under Stegall v. West, 11 Vet. App. 268 (1998), as the Board grants service connection for bilateral hearing loss, which is a total grant of benefits as to the issue on appeal, the Board need not address Stegall compliance at this time.
In July 2018, the Veteran testified at a Board videoconference hearing from the RO in San Diego, California, before the undersigned Veterans Law Judge in Washington, DC.  The hearing transcript has been associated with the record.
Service Connection for Bilateral Hearing Loss
The Veteran generally contends that service connection for bilateral hearing loss is warranted due to loud military noise exposure.  Specifically, the Veteran contends that he worked as a live fire cannoneer during service, which exposed him to excessive loud noise from gun fire and firing high explosive rounds from a tank without adequate hearing protection.  The Veteran contends that this exposure to loud noise during service caused him to develop hearing loss over the years.  See March 2013 lay statement; January 2016 VA examination report.  During the July 2018 Board videoconference hearing, the Veteran testified as to chronic hearing loss symptoms in service that continued after service separation.  See July 2018 Board hearing transcript. 
Service connection may be granted for a disability resulting from a 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).  Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in service disease or injury and the current disability.  
The Veteran is currently diagnosed with bilateral SNHL, which is considered an “organic disease of the nervous system” recognized as a “chronic disease” under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 apply to the claim for service connection for bilateral hearing loss.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  
For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes.  If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection.  38 C.F.R.  § 3.303(b). 
Where a veteran served ninety days or more of active service, and certain chronic diseases, such sensorineural hearing loss (as an organic disease of the nervous system), become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307 , 3.309(a).  While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time.
For VA purposes, 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 (dB) or greater; the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz are 26 dB or greater, or speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.  Additionally, the U.S. Court of Appeals for Veterans’ Claims (Court) has held that “the threshold for normal hearing is from 0 to 20 dBs [decibels], and higher threshold levels indicate some degree of hearing loss.”  See Hensley v. Brown, 5 Vet. App. 155, 157 (1993).
After a review of all the evidence, the Board finds that the evidence is at least in equipoise on the question of whether the Veteran has a current bilateral hearing loss disability for VA compensation purposes.  During the course if this appeal, some VA audiological examinations have demonstrated a hearing loss disability for VA compensation purposes under 38 C.F.R. § 3.385, while others reflect puretone threshold values that do not meet the criteria.  See, e.g., September 2010, March 2011, January 2013, August 2015, and January 2016, and September 2016 VA audiological examinations.  However, VA treatment notes reflect that the Veteran has a diagnosis of bilateral SNHL and he has used hearing aids since September 2013.  See September 2013, December 2016, and September 2016 VA treatment records.  As such, the Board resolves reasonable doubt in the Veteran’s favor in finding that the Veteran has a current bilateral hearing loss disability for VA compensation purposes.  
The Board finds that the Veteran experienced in-service acoustic trauma.  The Veteran has testified and written that he was exposed to loud noise from rifle gun fire and from firing explosive rounds from a tank while working as a live fire cannoneer without adequate hearing protection during service.  See March 2013 lay statement, July 2018 Board hearing transcript.  The DD Form 214 reflects the military occupational specialty was a cannon crewman.  The Board finds the Veteran’s account of in-service noise exposure to be credible and consistent with the places, types, and circumstances of his service.  38 U.S.C. § 1154(a).
The Board further finds that the evidence is at least in equipoise on the question of whether symptoms of bilateral hearing loss have been continuous since service.  The February 1984 service enlistment examination reflects that examination of the ears was clinically normal and that audiometric testing showed puretone threshold values of 20 dB at 500 Hz, 10 dB at 1000 Hz, 5 dB at 2000 Hz, 10 dB at 3000 Hz, and 10 dB at 4000 Hz in the right ear and of 5 dB at 500 Hz, 0 dB at 1000 Hz, 10 dB at 2000 Hz, 0 dB at 3000 Hz, and 10 dB 4000 Hz in the left ear.  During the December 1989 service reenlistment examination, audiological testing demonstrated a puretone threshold shift of up to 25 dB in the right ear and up to 20 dB in the left ear.  The Veteran was assigned a “H2” hearing profile.  See December 1989 service treatment record.  An April 2003 report of medical history also reflects that the Veteran responded “yes” to a history of problems with hearing loss.  See April 2003 service treatment record.
Throughout the course of this appeal, the Veteran has consistently contended that hearing loss began during service and has continued to worsen since service separation.  The Veteran’s and his wife’s written lay statements reflect that symptoms of hearing loss that began during service have progressively worsened over the years since service separation causing difficulty with word recognition and hearing low volume levels.  See March and April 2013 lay statements.  The Veteran testified that symptoms of hearing loss were chronic in service and have continued symptoms service separation.  See July 2018 Board hearing transcript.  
Additionally, the VA examiner in January 2016 opined that the Veteran’s hearing loss was likely etiologically related to service and cited to evidence of normal hearing at service entrance and significant puretone threshold shifts during service to support the opinion.  The Board finds this opinion to be highly probative as it relies on accurate facts and relevant evidence to support a nexus between the Veteran’s hearing loss and service.  Although the September 2017 VA examiner provided a negative nexus opinion, the opinion is based on a theory of direct service connection, so has little probative value as the Board is granting service connection on a presumptive basis under 38 C.F.R. § 3.303(b).    
The Board also finds that the Veteran has made credible statements and lay testimony that bilateral hearing loss symptoms began in active service and have been continuous since service.  The Veteran’s assertions of the onset of hearing loss during service and reports that he has had bilateral hearing loss symptomatology since service, in the context of the demonstrated in-service acoustic trauma and current diagnoses, are sufficient to place in equipoise the question of whether the current bilateral hearing loss was incurred in service and is etiologically related to the noise exposure in service.  
For these reasons, and resolving reasonable doubt in the Veteran’s favor, the Board finds that, based on continuous post-service symptoms of bilateral hearing loss since service, presumptive service connection for bilateral hearing loss is warranted under 38 C.F.R. § 3.303(b).  38 U.S.C. § 5107; 38 C.F.R. § 3.102.  The grant of presumptive service connection for hearing loss renders moot other theories of service connection.
 
J. PARKER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	S. Moore, Associate Counsel

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