Citation Nr: A19002082 Decision Date: 10/18/19 Archive Date: 10/18/19 DOCKET NO. 190424-9191 DATE: October 18, 2019 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT The Veteran’s current bilateral hearing loss is related to his active service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are met. 38 C.F.R. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. The Board is honoring the Veteran’s choice to participate in the VA’s test program, RAMP, the Rapid Appeals Modernization Program. This matter originated with a rating decision issued in April 2015 by the Columbia, South Carolina Regional Office (RO) of the United States Department of Veterans Affairs. In March 2018 the Veteran elected the modernized review system, and selected Higher Level Review at the RO. 38 C.F.R. § 19.2(d). Following issuance of a decision in April 2019, the Veteran elected Direct Review by the Board. 38 C.F.R. § 20.202. Under Direct Review, the record on appeal is limited to that evidence considered by the RO in the decision on appeal; no additional development takes place unless it is to correct a pre-decisional error in the duty to assist. 38 C.F.R. § 20.301. The Veteran served on active duty in the United States Army from March 1969 to September 1971. In the April 2019 AMA decision, the RO found that new and relevant evidence was submitted to warrant readjudicating the claim for service connection for bilateral hearing loss. The Board is bound by this favorable finding. 38 C.F.R. § 3.104(c). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also 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). In order to establish service connection on a direct basis, the record requires competent evidence showing: (1) the existence of a present disability; (2) in service incurrence or aggravation of an injury or disease; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The RO found that the Veteran has a current diagnosis of hearing loss for VA purposes, in accordance with 38 C.F.R. § 3.385, and conceded the Veteran’s exposure to in-service acoustic trauma. Medical opinions are split, however, on the question of a nexus between the two. VA examiners have opined in the negative, noting the lack of in-service onset of hearing loss. Private examiners have opined positively, reporting the current disability is consistent with noise exposure and the sole source of excessive noise shown is in service. The evidence of record is at least in equipoise based on the medical opinions, and the Veteran must prevail. Additionally, however, the Board notes that the Veteran is service-connected for tinnitus, based on VA medical opinions that in-service noise exposure was sufficient to damage hearing in at least one respect, and competent and credible lay statements from the Veteran associate decreased hearing acuity with service. A finding that such noise could damage hearing acuity as well is consistent with the evidence of record. Accordingly, the preponderance of the evidence favors the claim, and service connection for hearing loss is warranted. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. M. Lunger, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.