Citation Nr: 1708856 Decision Date: 03/22/17 Archive Date: 04/03/17 DOCKET NO. 10-27 183 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a bilateral hearing loss disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. Fraser, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1965 to March 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. When this case was previously before the Board in February 2014 and July 2016 it was remanded for additional development. It has since been returned to the Board for further appellate action. The record before the Board consists of electronic records within Virtual VA and the Veterans Benefits Management System. FINDING OF FACT The Veteran's bilateral sensorineural hearing loss is etiologically related to his active service. CONCLUSION OF LAW The criteria for service connection for a bilateral hearing loss disability have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2016). Because the Board is granting the Veteran's service connection claim for bilateral hearing loss, any error committed with respect to that claim is harmless. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2016); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis The Veteran seeks service connection for bilateral hearing loss, which he contends originated in service. The medical evidence confirms the Veteran currently has a bilateral hearing loss disability. The central issue that must be resolved at this time is whether the Veteran's current disability originated during service or is otherwise related to service. Initially, the Board notes that the Veteran's service treatment records (STRs) show his hearing was within normal limits on entrance into active duty. His STRs also appear to show a slight puretone threshold shift in each ear at the time of a May 1969 annual physical examination and October 1970 separation examination. Additionally, the Veteran's military occupational specialty was Pilot. The United States Marine Corps has acknowledged this occupational specialty has a sufficient probability for exposure to hazardous noise to concede damaging noise exposure in service. During his May 2010 VA examination the Veteran's puretone threshold testing revealed evidence of a current bilateral hearing loss disability in accordance with 38 C.F.R. § 3.385. However, three VA examiners have concluded the Veteran's current hearing loss was less likely as not caused by or the result of his military service. In this respect, the May 2010, April 2014 and September 2016 examiners have indicated that each of the Veteran's audiogram assessments in service revealed normal thresholds. Further, the September 2016 examiner cited a 2006 Institute of Medicine (IOM) study that found no scientific support for delayed onset hearing loss. However, the Board notes the examiner did not state the aforementioned study or current scientific evidence conclusively rules out the possibility of delayed onset hearing loss. Moreover, the Board also notes the examiner's wholly failed to acknowledge or discuss the Veteran's lay reports in their medical opinions. Examiners simply are not free to ignore a veteran's statements related to lay observable symptoms. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Notwithstanding the medical opinions provided by the May 2010, April 2014 and September 2016 VA examiners, the Veteran has continuously reported he was exposed to significant noise exposure during his period of active duty. More specifically, the Veteran has consistently stated that he initially noticed his bilateral hearing loss during his time in the military, and that his hearing loss has continuously persisted since that time. In this case, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The Board also notes that under certain circumstances, lay evidence may be sufficient to establish a nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay evidence has been found to be competent with regard to a disease that has "unique and readily identifiable features" that are "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007); see also Charles v. Principi, 16 Vet. App. 370, 374-75 (2002) (providing that a veteran's testimony regarding tinnitus is competent evidence, as "ringing in the ears is capable of lay observation."). In this case, the Veteran has reported that he experienced diminished hearing in service, which has persisted ever since. The Board finds the Veteran competent to report his hearing limitations. It is generally within the competence of a lay person to identify and observe the effect of a disability under the ordinary conditions of daily life. Many symptoms are readily observable by a lay person. Accordingly, the lay evidence provided by the Veteran is unquestionably competent evidence. In this respect, the Board finds the Veteran's own reports of experiencing decreased hearing to be at least as probative as the above-noted VA examiners' findings. As previously noted, this appeal turns on whether there is a nexus between the Veteran's current bilateral hearing loss and his exposure to acoustic trauma in service. The Veteran has competently and credibly reported that he initially experienced hearing loss during service following his hazardous military noise exposure. He has also indicated his diminished hearing has persisted since that time. Accordingly, a nexus to service is established. To the extent the VA examiners in May 2010, April 2014 and September 2016 opined that it was less likely as not that the Veteran's hearing loss was related to his military service, the Board finds these opinions to be of limited probative value as the opinions failed to address the Veteran's lay statements regarding the onset of his hearing loss, and cited to a medical study of limited conclusive value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) . In sum, the Board is satisfied that the evidence supporting a nexus between the Veteran's currently diagnosed bilateral sensorineural hearing loss and his in-service acoustic trauma is at least in equipoise with the evidence against a nexus. Therefore, the Veteran is entitled to service connection for his bilateral hearing loss disability. ORDER Entitlement to service connection for bilateral hearing loss disability is granted. ____________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs