Citation Nr: 20009869 Decision Date: 02/05/20 Archive Date: 02/05/20 DOCKET NO. 18-29 513 DATE: February 5, 2020 ORDER The claim of entitlement to service connection for bilateral hearing loss is granted. FINDINGS OF FACT 1. The Veteran’s assertions of in-service noise exposure are credible and consistent with the circumstances of his service. 2. The Veteran currently has bilateral hearing loss to an extent recognized as a disability for VA purposes, and the record includes competent, credible, and probative lay assertions that the Veteran began to experience symptoms of diminished hearing during service, and that his symptoms have persisted to the present. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran’s favor, the criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1131, 1154, 5107(b); 38 C.F.R. § 3.102, 3.159, 3.303, 3.304, 3.307. 3.309. 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1954 to August 1957. This appeal to the Board of Veterans’ Appeals (Board) arose from a July 2016 rating decision in which a Department of Veterans Affairs (VA) Regional Office (RO) denied entitlement to a service connection for bilateral hearing loss. The Veteran timely disagreed with, and perfected an appeal as to, the denial. In December 2019, the Veteran and his wife testified during a Board videoconference hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. Also, this appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2) and 38 C.F.R. § 20.900(c). Service Connection for Bilateral Hearing Loss The Veteran contends that he is entitled to service connection for bilateral hearing loss due to significant noise exposure he experienced during service, and he reported having significant symptoms of hearing loss which began during service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131, 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in or aggravated by service. See 38 C.F.R. § 3.303(d). Service connection for hearing loss may be granted where there is competent, credible evidence of (1) acoustic trauma due to significant noise exposure in service, (2) post-service audiometric findings meeting regulatory requirements for hearing loss (set forth in 38 C.F.R. § 3.385), and (3) a medically sound basis upon which to attribute the post-service finding to the injury in service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Thus, when testing results at separation from service do not meet the requirements for establishing hearing loss under 38 C.F.R. § 3.385, service connection may still be established “by submitting evidence that the current disability is causally related to service.” Id. at 160. Further, if a chronic disease, such as an organic disease of the nervous system, becomes manifested to a degree of ten percent within one year of separation from active service, then it is presumed to have been incurred during active service, even if there is no evidence of such disease during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1111, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA’s Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss as an organic disease of the nervous system, and therefore a chronic disease subject to presumptive service connection. See Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, October 4, 1995. For the showing of chronic diseases in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. The United States Court of Appeals for the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to establishing service connection on the basis of continuity of symptomatology in lieu of a medical nexus opinion is limited to disorders explicitly recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Laypersons, such as the Veteran, are competent to report on matters observed or within his or her personal knowledge, to include the occurrence of injury, and as to the nature, onset, and continuity of symptoms experienced or observed. See 38 C.F.R. § 3.159(a)(2); Charles v. Principi, 16 Vet. App. 370 (2002); Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board, however, retains the discretion to determine the credibility and probative value of all evidence of record, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). In adjudicating a claim for VA benefits, 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(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990); 38 C.F.R. § 3.102. Considering the pertinent evidence of record in light of the governing legal authority, and resolving all reasonable doubt in the Veteran’s favor on certain elements of the claim, the Board finds that service connection for bilateral hearing loss is warranted. At the outset, the Board notes that the Veteran’s active duty service treatment records (STRs) are not of record, possibly as a result of a fire at the National Personnel Records Center in 1973. The Board is aware that in service connection cases in which service records are not available (through no fault of the Veteran), VA has a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the doubt rule. Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Here, notwithstanding the absence of STRs, the Board notes that the Veteran credibly reported that he was exposed to significant military noise as a result of his confirmed military occupational specialty as an automobile engine mechanic and repairman, and as a result of his confirmed experience firing weapons, warranting an ordnance school certification, and finds his reports to be credible and consistent with the era and circumstances of his service. Further, the Board finds the Veteran’s reports, including during his December 2019 Board hearing, regarding experiencing an onset of hearing loss symptoms during service to be credible. Notably, he testified that he had significant symptoms of hearing loss during service, and that he sought medical treatment for his hearing loss. He maintained that his hearing loss was sufficiently severe that the doctor discussed the possibility of seeking a medical discharge from service. The Veteran maintained that since he only had a few months remaining on his tour of duty, that he was able to obtain a transfer to a desk job for the remainder of his service. The Veteran is competent to report experiencing symptoms if diminished hearing during service, and, as there is no contradictory evidence, the Board finds no reason to question the veracity of his assertions in this regard. See Layno, 6 Vet. App. 465. As for the current hearing loss disability requirement, impaired hearing will be considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. In this case, a February 2016 VA audiology examination report reflects that the Veteran’s auditory threshold was well over 40 decibels at 500, 2000, 3000, and 4000 Hertz in both ears, and at the 1000 Hertz frequency in the left ear. The examiner diagnosed bilateral high frequency sensorineural hearing loss. Accordingly, the Veteran clearly has a bilateral hearing loss disability for VA purposes and consistent with the Memorandum issued by VA’s Under Secretary for Health, as noted above. See id. The remaining question is whether the Veteran’s current bilateral hearing loss is etiologically-related to service, particularly, his likely significant noise exposure, and reported hearing loss therein. In this case, the record contains conflicting evidence. In the February 2016 VA examination report, the VA examiner noted that while the Veteran’s STRs were not available, the examiner noted that the Veteran reported that he first started having hearing problems approximately 10 years prior to the examination, approximately 40 years after his separation from service. The examiner noted an absence of reports or documentation of hearing loss prior to the examination. The examiner additionally relied on an Institute of Medicine report which noted an understanding that the mechanisms and processes involved in the recovery from noise exposure suggests that a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure is extremely unlikely. The examiner’s opinion appears to be based on an inaccurate factual premise, namely that the Veteran’s report that he first noticed hearing problems approximately 10 years prior to the examination. As such, the opinion may not be relied upon to deny the claim. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (an opinion based upon an inaccurate factual premise has no probative value.). On this point, in contrast to the examiner’s statement, medical and lay evidence of record indicates that the Veteran has consistently reported having had hearing loss for many years. Notably, during a September 2014 VA audiology consultation, the Veteran reported that he had experienced a gradual decrease in his hearing over several years. Additionally, in his April 2018 statement, and during his December 2019 Board hearing, he maintained that he experienced significant hearing loss during service, necessitating medical treatment in service, where the possibility of a medical discharge was discussed. He additionally reported that he did not experience any improvement in his hearing loss since his separation from service, and that he sought treatment for hearing loss within a couple of months after separation, while living in Los Angeles. He maintained that records pertaining to post-service treatment would not be available as many years had passed since. Further, in her testimony during the December 2019 Board hearing, the Veteran’s wife noted that she had been married to the Veteran for nearly 60 years, and she affirmed that the Veteran had always had problems with hearing loss for as long as she had known him. She maintained that, after some time. she encouraged him to seek treatment for hearing loss, and that he reportedly told her about his prior experience of seeking treatment soon after his separation service and that he did not want to seek any further treatment because hearing aids were prohibitively expensive. She reported that when she found out that the Veteran could receive help for his hearing loss from VA, she encouraged him to seek such treatment, since his hearing loss began in service. As noted, the Veteran and his wife have provided detailed lay evidence of an onset of hearing loss during service, and of a continuity of hearing loss symptoms since the Veteran’s separation from service. Further, as indicated, hearing loss is among the chronic diseases listed at 38 C.F.R. § 3.309(a) that may be service-connected based on continuity of symptomatology (in lieu of a medical opinion), which, the Veteran and his wife assert. Given the foregoing evidence, the Board finds that the Veteran has provided competent evidence that he has had continuous symptoms of bilateral hearing loss since his discharge from active duty service. See Charles, 16 Vet. App. 370; Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993). As the Board finds no reason to question the veracity of the lay statements provided by the Veteran and his wife, they are also deemed credible, and hence, probative. Thus, while the Board has considered the February 2016 VA examiner’s opinion, given the competent, credible and probative-assertions made by the Veteran and his wife, as to onset of hearing loss during service and continuity of symptomatology of hearing loss since service, the Board finds that the evidence of record is, at least, relatively evenly balanced on the medical nexus question for this claim. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. See 38 C.F.R. § 3.102; see also 38 U.S.C. § 5107; Gilbert, 1 Vet. App. at 53-56. Given the facts noted above, and resolving any reasonable doubt in the Veteran’s favor, the Board concludes that the criteria for service connection for bilateral hearing loss are met. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Wilson, 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.