Citation Nr: 21001711 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 14-22 659 DATE: January 11, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran’s bilateral hearing loss disability was related to in-service acoustic trauma. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.303, 3.304, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Army from September 1961 to September 1963. He died in July 2020. In October 2020, the Regional Office (RO) of the Department of Veterans Affairs (VA) recognized the appellant, the Veteran’s surviving spouse, as substitute claimant for the purposes of continuing the Veteran’s VA compensation claims that were pending at the time of his death. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision of the VA Regional Office, which denied, inter alia, service connection for bilateral hearing loss. In December 2013, the Veteran filed a Notice of Disagreement and a Statement of the Case was issued in April 2014, continuing the denial of service connection for bilateral hearing loss. In June 2014, the Veteran perfected his appeal to the Board. In January 2018, the Board denied the claim. In January 2018, the Court granted a joint motion by counsel for VA and the Veteran, vacating the Board’s decision and remanding the claim to the Board. The Board remanded the claim in July 2019. A Supplemental Statement of the Case was issued in June 2020, continuing the denial of service connection for bilateral hearing loss. In January 2021, the Veteran testified at a virtual hearing before the undersigned but a transcript is not necessary because the benefit sought is being granted in full. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service 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 addition to the criteria set forth above, service connection for impaired hearing is subject to the additional requirement of 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability only if at least one of the thresholds for the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of the frequencies are greater than 25 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. Entitlement to service connection for bilateral hearing loss. The Veteran asserted that his hearing loss was related to noise exposure in service. He contended that he suffered from hearing loss during service, which continued and worsened after his separation from service. A December 2019 VA audiometric examination report shows pure tone thresholds, in decibels, as follows:       HERTZ       500 1000 2000 3000 4000 RIGHT  85 85 105+ 105+ 105+ LEFT  90 95 105+ 105+ 105+ Speech audiometry revealed speech recognition ability of 0 percent in the right ear and 0 percent in the left ear. The above results establish the Veteran has a bilateral hearing loss disability under VA regulations. 38 C.F.R. § 3.385. The Veteran’s DD-214 reflects that his military occupation specialty (MOS) was as a Light Vehicle Driver. In his May 2014 appeal (VA Form 9), the Veteran attested to hazardous noise exposure during service. In a June 2020 letter, he stated that, during service, he experienced military noise as a vehicle driver and from gunfire, and often by the end of the day he could not hear. The Veteran’s statements in this regard are competent, credible, and consistent with the places, types, and circumstances of his service. See 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service records). The in-service injury element has, therefore, been met. Therefore, the dispositive issue is whether the Veteran’s bilateral hearing loss was due to his exposure to acoustic trauma while in service. At his 2019 VA examination, the Veteran reported that his hearing loss began during military service, due to exposure to weapons fire and artillery, and the symptoms worsened throughout the years. He denied post-service recreational noise exposure. Evidence against the claim consists of a December 2019 VA examination report, in which the VA examiner opined that it was less likely than not that the Veteran’s bilateral hearing loss was caused by or a result of his military service. The examiner noted the Veteran had normal hearing loss at separation from service in 1963. He also cited an opinion published by the American College of Occupational Medicine Noise and Hearing Conservation Committee, which found that “a noise-induced hearing loss will not progress once it is stopped.” However, the opinion is inadequate because it did not take account of the Veteran’s lay statements. Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that VA’s examiner’s opinion, which relied on the absence of contemporaneous medical evidence, “failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran’s] disability such that his claim for service connection could be proven without contemporaneous medical evidence”). Moreover, the absence of hearing loss disability in service is not in and of itself fatal to a claim for service connection for bilateral hearing loss disability. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Further, the Veteran submitted an article from The Journal of Neuroscience (May 2015), which presented evidence that noise exposure may, in fact, have long-term effects on the aging ear, that continue long after the damaging noise has stopped. This article further undercuts the rationale of the VA examiner and provides support for the claim. Sacks v. West, 11 Vet. App. 314, 317 (1998) (medical article and treatise evidence may assist in establishing service connection). Given the above, the evidence is at least evenly balanced as to whether the Veteran’s bilateral hearing loss disability was a result of noise exposure in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for bilateral hearing loss is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.  Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. K. Donaldson, 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.