Citation Nr: 20042349 Decision Date: 06/23/20 Archive Date: 06/23/20 DOCKET NO. 17-02 723 DATE: June 23, 2020 ORDER The claim for service connection for bilateral hearing loss is granted. FINDING OF FACT There is an approximate balance of positive and negative evidence as to whether the Veteran’s current bilateral hearing loss disability is related to acoustic trauma during service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1969 to February 1971. His claim for service connection for bilateral hearing loss comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). For the reasons set forth below, the Board finds that the evidence is in equipoise concerning whether the Veteran’s bilateral hearing loss disability is related to service, thereby warranting the grant of service connection. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For the purposes of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the 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. 38 C.F.R. § 3.385. In other words, a minimum degree of hearing loss is a prerequisite to establish service connection, and that a change in hearing as a result of service is a disability if it exceeds the levels specified in 38 C.F.R. § 3.385. See McKinney v. McDonald, 28 Vet. App. 15 (2016). The Veteran in this case has meet the first element of a current bilateral hearing loss disability as first confirmed when evaluated by a VA audiologist in July 2014. The central issue therefore is whether his hearing loss disability is related to service. The evidence for consideration includes the Veteran’s service treatment records, several VA audiological evaluations, his service personnel records showing that he participated in combat, and his own lay statements. The Board acknowledges that his service treatment records do not support his claim. Audiometric testing during a pre-induction examination in March 1968 revealed that his right ear had a 5-decibel loss at the 500 and 1,000 Hz levels, a zero-decibel loss at the 2,000 Hz level, and a 35-decibel loss at the 4,000 Hz level. Testing in the left ear revealed a 15-decibel loss at the 500 Hz level, a 10-decibel loss at the 1,000 Hz level, a 5-decibel loss at the 2,000 Hz level, and a 40-decibel loss at the 4,000 Hz level. Yet audiometric testing in December 1970, several months prior to his separation, revealed a zero-decibel loss at all Hz levels bilaterally. The service treatment records therefore indicate that the Veteran’s hearing loss documented at his pre-induction examination miraculously resolved by the time he separated from active duty. After careful consideration, the Board rejects these findings because hearing loss is considered a chronic disability which is not capable of resolving over several years, particularly, as will be discussed below, due to acoustic trauma the Veteran experienced in service. The U.S. Court of Appeals for Veterans claims has also held that, even though disabling hearing loss may not be demonstrated at the time of separation from service, a Veteran may nevertheless establish service connection for hearing loss by submitting evidence that the current disability is related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). The Board places significant probative value on the fact that the Veteran was awarded the Combat Infantry Badge and the Bronze Star Medal for his participation in combat in Vietnam. This is significant because the Veteran’s combat service requires that the Board presume that he experienced acoustic trauma in service. See 38 U.S.C. § 1154(b). The Board also finds the Veteran's statements of hearing loss since service to be both competent and credible, which is additional evidence that supports the nexus element. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Board recognizes that two VA audiologists reviewed the claims file before concluding that the Veteran’s hearing loss is unrelated to service. But the probative value of these opinions is limited due to the fact that they relied exclusively on audiometric testing in service showing a miraculous resolution of a supposed hearing loss disability over a two-and-a half-year period, which the Board rejects. Moreover, neither audiologist properly considered the Veteran’s presumed acoustic trauma in service. These factors limit the probative value of the audiologists’ opinions because they are based on an inaccurate factual premise. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Reonal v. Brown, 5 Vet. App. 458 (1993). Based on the foregoing, the Board finds that the evidence is in equipoise as to whether the Veteran's current bilateral hearing loss is related to his presumed in-service acoustic trauma. Accordingly, after resolving all doubt in the Veteran’s favor, the Board finds that service connection for bilateral hearing loss is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Douglas E. Massey 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.