Citation Nr: 18153829 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 16-13 317 DATE: November 29, 2018 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran’s current bilateral hearing loss is related to in-service acoustic trauma. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1969 to December 1970. This matter came to the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript has not yet been associated with the file, however, one is not necessary for a decision on the claim. 1. Hearing Loss The Veteran seeks service connection for hearing loss. He contends that such disability is due to military noise exposure. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of a pre-existing injury or disease in the line of duty in the active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304, 3.306. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In addition to the criteria set forth above, service connection for impaired hearing is subject to the additional requirement of 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability only if at least one of the thresholds for the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of the frequencies are greater than 25 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. See also Hensley v. Brown, 5 Vet. App. 155 (1993). In claims for VA benefits, VA 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. § 5107(b). In this case, the evidence of record, particularly the May 2014 VA examination report, reflects a current hearing loss disability. 38 C.F.R. § 3.385. Thus, the first element of service connection has been met. The evidence of record also supports a finding that there was in-service noise exposure. As a preliminary matter, service treatment records (STRs) do not include any hearing loss complaints or treatment, and a separation examination is not of record. The Veteran’s DD Form 214 indicates his MOS was auto mechanic and that he is in receipt of the Bronze Star Medal based on service in Vietnam. At the May 2014 VA examination, the Veteran reported that he was in artillery outfits and then he worked in the maintenance section with a big truck and large equipment which was noisy. He further noted that he was on different firebases where they always shot off large guns and cannons. The Board finds the Veteran’s statements credible. Therefore, in-service noise exposure is established. With respect to third and final requirement, a nexus, the May 2014 VA examiner opined that it is less likely than not the Veteran’s hearing loss is due to military noise exposure. The examiner’s rationale was due to no significant change in hearing thresholds during the service, the Veteran’s hearing loss is less likely than not caused by or a result of an event in military service. In this case, the Board finds the May 2014 VA opinion that the Veteran’s hearing loss is not related service is of no probative value, as it was based on an inaccurate factual premise. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). Specifically, the VA medical examiner rendered the opinion that due to no significant change in hearing thresholds during the service, the Veteran’s hearing loss is less likely than not caused by or a result of an event in military service. The STRs include an audiological test performed at the Veteran’s pre-induction examination. However, the STRs contain no record of subsequent audiological testing during service, and as noted above, a separation examination is not of record. Additionally, the opinion does not consider the Veteran’s competent and credible statement of noise exposure in service. In this regard, a medical opinion is inadequate if it is based solely on the absence of documentation in the record and does not take into account the Veteran’s reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). There is no other probative evidence of record which attributes the Veteran’s current hearing loss to any other cause than in-service noise exposure. In addition, service personnel records reflect that the Veteran received his Bronze Star Medal for meritorious service in connection with military operations against an armed hostile force. This reflects that the Veteran engaged in combat with the enemy. VAOPGCPREC 12-99 (October 18, 1999). The finding that the Veteran engaged in combat is significant because it allows a combat veteran to use “satisfactory lay or other evidence” to establish that he was injured or incurred a disability while on active duty, even in cases where “there is no official record” that such injury or disability occurred. Reeves v. Shinseki, 682 F.3d 988, 998 (Fed. Cir. 2012) (quoting 38 U.S.C. § 1154(b)). The Board therefore accepts the Veteran’s testimony that he suffered acoustic trauma in service. Moreover, the fact that the claimed cause of the Veteran’s hearing loss, i.e., acoustic trauma from large gun and cannon fire and related noise, is therefore established by his testimony, does not prevent him from also invoking the section 1154(b) rules in order to show that he incurred the disability itself while in service. Reeves, 682 F.3d at 999. Based on the evidence of record including the Veteran’s combat service, and resolving reasonable doubt in his favor, the Board finds that the Veteran currently has hearing loss that was incurred during his active military service. Thus, service connection for hearing loss is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Walker, Associate Counsel