Citation Nr: 21000578 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 17-30 466 DATE: January 5, 2021 ORDER Entitlement to service connection for a bilateral hearing loss disability is granted. FINDING OF FACT After resolving reasonable doubt in the Veteran’s favor, his bilateral hearing loss disability is related to his military service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty during the Vietnam War era from December 1965 to December 1967. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a December 2016 rating decision of a Department of Veterans Affairs (VA). This case was previously remanded in July 2019 for further development. Entitlement to service connection for bilateral hearing loss disability. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence 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, otherwise known as the “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after discharge when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran seeks service connection for a bilateral hearing loss disability. After a review of the claim file and resolving all reasonable doubt in the Veteran’s favor, the Board finds that service connection is warranted. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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. The Court of Appeals for Veterans Claims has indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service, if there is sufficient evidence to demonstrate a relationship between the Veteran’s service and his current disability. When a Veteran has engaged in combat with enemy forces, VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and to that end, shall resolve every reasonable doubt in favor of the Veteran. 38 U.S.C. § 1154(b). Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. 38 C.F.R. § 3.304(d). Here, the Veteran contends that he had perfect hearing entering the military that diminished upon discharge. While serving in Vietnam, the Veteran contends his combat experience exposed him to mortars, rockets, loud engines, and constant noises from construction machinery. The evidence shows that the Veteran served in Vietnam and was awarded the Fleet Marine Force Combat Operations Insignia for his service. As a construction mechanic, the Veteran was exposed to loud noises and acoustic traumas. See February 2017 Statement in Support of Claim. Therefore, the record establishes evidence of in-service noise exposure. The December 2016 VA audiological examination shows that the Veteran currently has a bilateral hearing loss disability for VA purposes. Thus, since the evidence shows that the Veteran currently has bilateral hearing loss and there was in-service noise exposure, the question for the Board is whether there is a nexus between the current bilateral hearing loss disability and the in-service noise exposure. There are two etiology opinions of record. The Board previously found the December 2016 VA medical opinion to be inadequate. As such, the opinion will not be discussed any further herein. The Board acknowledges the November 2019 VA opinion that states the Veteran’s bilateral hearing loss disability is less likely than not related to military noise exposure. The opinion is based on medical treatise evidence from 2005 that suggests most profound auditory effects of noise exposure occur immediately following exposure. The VA examiner opined that, if the Veteran’s hearing loss was caused by military noise exposure, hearing loss would have been present at separation in 1967. However, the opinion provides as a rationale the same basis as the December 2016 VA opinion which the Board previously found inadequate. Moreover, as with the December 2016 opinion the rationale primarily relies on an absence of disability in service. An absence of hearing loss in service is not dispositive of the issue and an opinion based on this fact is inadequate. See Hensley v. Brown, 5 Vet. App.155 (1993). Finally, the Board notes that it appears that the November 2019 examiner did not consider the Veteran’s statements that while he may not have had a hearing loss disability in service, his hearing had diminished in service. As such, the Board places little probative weight on the opinion. The Board is therefore left with a record which shows the Veteran had noise exposure in service and is currently diagnosed with a bilateral hearing loss disability which cannot be disassociated from his noise exposure in service. Accordingly, resolving reasonable doubt in the Veteran’s favor, the Board finds that service connection for a bilateral hearing loss disability is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. K. Jones 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.