Citation Nr: 18149614 Decision Date: 11/13/18 Archive Date: 11/09/18 DOCKET NO. 10-48 088 DATE: November 13, 2018 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT Resolving all doubt in favor of the Veteran, his bilateral hearing loss is related to his in-service noise exposure. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Marine Corps on active duty from January 1963 to January 1993. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veteran’s Affairs (VA) Regional Office (RO) in Portland, Oregon. In February 2016 and September 2017, the Board remanded the case to the agency of original jurisdiction (AOJ). In September 2017, the Board remanded the case to the AOJ to (1) obtain, or use all reasonable efforts to obtain, all VA integrated medical records from approximately 1993, (2) to obtain an addendum opinion to the March 2009 VA audiologist examination, and (3) to readjudicate the Veteran’s claim based on the entirety of the evidence. In November 2015, the Veteran testified before the undersigned at a Board hearing. A transcript of that hearing has been prepared and associated with the record on appeal. Service connection for bilateral hearing loss The Veteran claims entitlement to service connection for bilateral hearing loss as a result of aircraft noise exposure during service. 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 also be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurrent in service. 38 C.F.R. § 3.303(d). Generally, to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including hearing loss, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, service connection may also be granted for chronic conditions that have manifested continuous symptomology since separation of service. 38 C.F.R. §§ 3.307, 3.309. A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d at 1377. A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App 370, 374 (2002). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) 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. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993.) Impaired hearing will be considered a disability for purposes of laws administered by VA when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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 Test are less than 94 percent. 38 C.F.R. § 3.385. The failure to meet these criteria at the time of a Veteran’s separation from active service is not necessarily a bar to service connection for hearing loss disability. A claimant “may nevertheless establish service connection for a current hearing loss disability by submitting evidence that the current disability is related to service.” Hensley v. Brown, 5 Vet. App. at 159-60; see 38 C.F.R. § 3.303(d). Turning to the evidence of record, the Board concedes that the Veteran has a diagnosis of bilateral hearing loss for VA purposes under 38 C.F.R. § 3.385, as shown by the audiometric data in his January 2018 VA audiological examination. A current disability is established. The Board further finds that the second element of service connection, the in-service occurrence, has been met in this case. The Veteran reported in-service noise exposure from working in and around helicopters and jets. The Veteran’s Form DD-214 lists his military occupation specialty as an Avionics Maintenance Chief and as an Aircraft Electrical Systems Technician; roles that carry a high probability of exposure to excess aircraft noise. Thus, noise exposure in service has been established. The third and last element of the Veteran’s claim for service connection is the existence of a causal link between his in-service acoustic trauma and his present hearing loss. The Veteran’s service treatment records indicate threshold shifts in both ears. For example, the Veteran’s audiometric data from a December 1967 in-service examination was as follows:   HERTZ 1000 2000 3000 4000 Right -5 -5 5 5 Left -10 -10 10 0 On an August 1992 service evaluation, conducted shortly before the Veteran’s separation, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Right -5 5 -10 25 Left 0 15 0 15 In March 2009, a VA audiologist determined the Veteran experienced normal to mild sensorineural hearing impairment in the right ear and normal to moderately severe sensorineural hearing impairment in the left ear. The March 2009 VA audiologist opined that the Veteran’s hearing impairment was not caused by or a result of noise exposure during service. The Board found this opinion inadequate because in rendering his opinion, the audiologist solely relied on the absence of hearing loss at service separation. In January 2018, a VA audiologist determined that the Veteran’s left ear hearing loss was at least as likely as not caused by noise exposure in the service. The audiologist explained that there was evidence of a shift in hearing in the left ear as compared to hearing thresholds on a hearing test in December 1967 and on a reference audiogram in January 1973. The audiologist also reasoned that the Veteran’s left ear hearing loss was linked to his military noise exposure because there was evidence of the Veteran’s decreased hearing at 4000 Hertz noted on hearing tests in October 1984, October 1985, October 1987, and October 1988.   The VA audiologist determined that the Veteran’s right ear hearing loss was less likely than not caused by noise exposure in service because his right ear hearing was normal upon separation from service with no significant threshold shifts during his active service. The audiologist also noted that the Veteran worked in a steel mill post-service, which is known to involve excessive noise. However, the Veteran’s audiometric data from the August 1992 in-service examination, as compared to audiometric data from the December 1967 in-service examination, reflects that the Veteran’s right ear deteriorated from 5 to 25 decibels in the 4000 Hertz frequency range. Nevertheless, the Board notes that the Veteran does not have to show hearing loss at the time of discharge to establish service connection. Hensley v. Brown, 5 Vet. App. at 155. Despite the audiologist’s findings, which appeared to be merely based upon an absence of disabilities shown in service treatment records for the right ear, the Veteran has also provided competent and credible lay statements regarding continuity of symptoms. During his November 2015 Board hearing, the Veteran confirmed his in-service noise exposure, and his descriptions of in-service noise exposure are consistent with the circumstances of his service. The Veteran also stated that he noticed hearing loss while he was in service and since his service. See November 2015 Board Hearing transcript, p. 5. The Board finds service connection for the left ear is warranted based upon the audiologist’s opinion in the January 2018 VA examination. As for the Veteran’s right ear, the Board finds the January 2018 VA opinion inadequate because the opinion is based on the incorrect finding that there was no threshold shift, as previously noted in the service treatment records between December 1967 and August 1992. Additionally, the Veteran testified that he has experienced hearing loss in the right ear since service and the loss in that ear meets VA criteria for hearing loss. Therefore, the evidence is at least in equipoise as to whether the Veteran’s diagnosed sensorineural hearing loss in the right ear is a result of the Veteran’s in-service noise exposure, particularly as the Veteran had the same noise exposure in both ears during service. Resolving all reasonable doubt in the Veteran’s favor, the Board concludes that the Veteran’s right ear hearing loss was incurred in service. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Thus, service connection for bilateral hearing loss is warranted. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Amanda Purcell, Law Clerk