Citation Nr: 19171663 Decision Date: 09/16/19 Archive Date: 09/16/19 DOCKET NO. 17-50 571 DATE: September 16, 2019 ISSUE Entitlement to service connection for a bilateral hearing loss disability. ORDER Entitlement to service connection for a bilateral hearing loss disability is granted. FINDING OF FACT Resolving all doubt in his favor, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran’s bilateral hearing loss disability is related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for a bilateral hearing loss disability have been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Air Force from April 1952 to August 1956 and from September 1956 to September 1960. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a June 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2019, the Veteran presented testimony in a Travel Board hearing before the undersigned. A copy of the transcript has been associated with the claims file. This matter has been advanced on the Board’s docket. 38 U.S.C. § 7107 (a)(2); 38 C.F.R. § 20.900 (c). As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, as to the claim of service connection for a bilateral hearing loss disability, the Board is granting in full the benefits sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Entitlement to service connection for a bilateral hearing loss disability. The Veteran is claiming entitlement to service connection for a bilateral hearing loss disability. To establish a service connection for a bilateral hearing loss disability, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence or aggravation of a disease or injury, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (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 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. When VA provides a medical examination, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311-312 (2007), see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (“The Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusions submitted in the medical opinion”). In deciding the Veteran’s claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event; or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. As noted above, the Veteran has consistently claimed that his bilateral hearing loss is due to his active duty service. In the Veteran’s Notice of Disagreement from June 2017, he wrote that his bilateral hearing loss was due “to working on U.S. aircraft.” The Veteran’s claims file also includes correspondence submitted in February 2017, in which we wrote that his hearing loss was from working “as an aircraft reciprocating engine mechanic in aircraft maintenance my whole career.” Further correspondence from the Veteran notes that “there was no protective gear used at any time to protect my ears.” As indicated above, the Veteran testified before the undersigned Veterans Law Judge in May 2015. The Veteran testified that he worked his entire career as an aircraft maintenance technician, which exposed to him aircraft engines and loud noises. He further testified that “we didn’t have hearing protection,” and that his post-service job in a sheet metal factory offered “great hearing protection” by comparison. He also stated that he was quickly promoted off of the factory floor and was “was in an office setting … the rest of my career,” thus his most significant noise exposure was in service around aircraft engines. The Veteran summarize his claim when testifying that “I worked around the aircraft, the flight line, ran up aircraft engines, all eight years [of service] I was around loud aircraft noises, day in and day out.” As noted, lay evidence must be given due consideration, and shall include the facts, nature, and circumstances of the service. 38 U.S.C. § 1154(a). The statements from the Veteran are consistent in their claims over the course of this appeal. Furthermore, while the Veteran is not competent to opine as to the etiology of his bilateral hearing loss, he is competent to discuss his military occupational specialty, to include his experience around aircraft engines throughout his active duty. Thus, the Board finds that the statements and testimony are entitled to probative weight. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board also notes that the Veteran’s military personnel record confirms the Veteran’s statements and testimony regarding his in-service exposure to loud noises. The Veteran’s personnel record indicates he was a reciprocating engine mechanic, and that he was trained in aircraft engine and repair. The Veteran’s claims file includes a VA examination from March 2017. The VA examiner had access to the Veteran’s claims file and conducted an in-person examination. The VA examiner confirmed that the Veteran had a current diagnosis of sensorineural hearing loss in each ear. The VA examiner then provided an opinion that the Veteran’s bilateral hearing loss was less likely than not caused by his military service. The examiner further opined that the Veteran’s hearing loss was related to “occupational [sheet metal] noise exposure in his civilian job … therefore, Veteran’s hearing loss is likely the result of occupational noise exposure and aging.” The Veteran’s claims file also includes an opinion provided by the Veteran’s private physician from September 2017. The private examiner confirmed the diagnosis of bilateral hearing loss. The examiner then provided a positive etiological opinion as to the Veteran’s bilateral hearing loss, writing that “these conditions are associated with prolonged high noise exposure. [The Veteran] was a member of the Air Force for several years and it is my opinion that the noise exposure during his years of service is very likely to have contributed significantly to these conditions.” Further correspondence from this same examiner indicates that the Veteran has been his patient for some time and describes his bilateral hearing loss as “longstanding.” There is no evidence that either the VA examiner or the private physician from the March 2017 and September 2017 examinations were not competent or credible, and as the reports were based on accurate facts and objective examinations, the Board finds they are each entitled to significant probative weight as to the Veteran’s disability. Nieves-Rodriguez, 22 Vet. App. 295. Turning to an analysis of the evidence, the Veteran has satisfied the criteria for entitlement to service connection for a bilateral hearing loss disability. 38 C.F.R. § 3.303(a). To begin, the Veteran has a confirmed diagnosis of bilateral sensorineural hearing loss. Both the VA examination and the private examination confirmed that diagnosis, and thus the Veteran has met the first criteria for entitlement to service connection. Moving to the second criteria, the Board notes that despite the Veteran’s service treatment records being silent for complaints of bilateral hearing loss, his military personnel records confirm his exposure to loud noises as an aircraft mechanic. This is further evidenced by the correspondence and testimony provided by the Veteran, which the Board has already determined to be credible, and thus entitled to probative weight. Therefore, the second criteria for service connection has also been met. Finally, regarding the third element, although the Veteran’s claims file includes a VA examination which provides a negative etiology, noting that the Veteran’s hearing loss was likely due to age and his work in a sheet metal factory, the Veteran provided credible testimony that he was quickly promoted to a management position away from the factory floor. He also testified to having had good hearing protection during that job, while his work around aircrafts during active duty provided him no hearing protection. There is little indication that the VA examination from March 2017 took those factors into account when providing the negative nexus. And while the Board acknowledges that the private opinion from September 2017 is brief, the examiner attributed the Veteran’s bilateral hearing loss to the same factors that the Veteran has credibly testified to. Furthermore, the Board notes that the private examiner is the Veteran’s regular physician, and thus is more likely to have considered the Veteran’s personal history of in-service noise exposure. Therefore, reading the evidence in a way most favorable to the Veteran, and resolving any reasonable doubt in favor of the Veteran, the Board finds that the Veteran has satisfied the third criteria. 38 C.F.R. § 4.3 Thus, the Veteran has met the criteria for entitlement to service connection for a bilateral hearing loss disability. As such, affording the Veteran the benefit of the doubt, service connection for a bilateral hearing loss disability is warranted. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Mulrain, 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.