12-15 063
12-15 063
| Board of Vet. App. | Nov 30, 2017Background
- Veteran served honorably in the U.S. Army, May 1968–March 1970; service treatment records document an in-service acoustic trauma and several days of treatment for hearing loss.
- Initial VA ratings (2009, 2011) denied reopening the hearing-loss claim; Board later reopened the claim in Aug 2016 after finding new and material evidence.
- Veteran underwent multiple VA audiological evaluations (Dec 2013, Dec 2014, Oct 2016) and treatment records (2005–2008) documenting sensorineural hearing loss meeting VA disability criteria.
- Veteran and treating clinicians (Sept 2005 audiologist; Sept 2014 treating physician) reported onset in service or longstanding, noise-related progressive hearing loss, and opined nexus at least as likely as not to service.
- Veteran requested a Board hearing but failed to appear for a scheduled videoconference; hearing request was treated as withdrawn.
- Board found the evidence in equipoise on nexus and granted service connection for bilateral hearing loss pursuant to benefit-of-the-doubt rule.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether bilateral hearing loss is service‑connected | Veteran: hearing loss began with in‑service acoustic trauma and continued/progressed post‑service; treating clinicians support nexus | VA/RO: previously denied for lack of new/material evidence and later contested nexus; argued insufficient evidence of nexus to service | Granted — Board found current disability, in‑service event, and nexus in equipoise; benefit of the doubt to Veteran establishes service connection |
Key Cases Cited
- Shedden v. Principi, 381 F.3d 1163 (Fed. Cir.) (elements required to establish service connection)
- Fountain v. McDonald, 27 Vet. App. 258 (Vet. App.) (sensorineural hearing loss is a chronic condition under 38 C.F.R. § 3.309(a))
- Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir.) (limits and application of continuity of symptomatology)
- Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir.) (competence of lay evidence for medical nexus in certain cases)
- Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir.) (lay evidence may be competent despite lack of contemporaneous medical records)
- Savage v. Gober, 10 Vet. App. 488 (Vet. App.) (continuity of symptomatology standard)
- Gilbert v. Derwinski, 1 Vet. App. 49 (Vet. App.) (benefit‑of‑the‑doubt rule)