Citation Nr: 21001935 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 15-45 613 DATE: January 12, 2021 ORDER Service connection for bilateral hearing loss is granted. FINDING OF FACT The probative evidence of record is at least in equipoise as to whether the Veteran’s bilateral hearing loss is a result of service or etiologically related to in-service noise exposure. CONCLUSION OF LAW With resolution of reasonable doubt in the Veteran’s favor, the criteria for a grant of service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 1968 to June 1971. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from an April 2015 Rating Decision of the Department of Veteran’s Affairs (VA) Regional Office (RO). In February 2019, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ). The hearing transcript is of record. In November 2020, the Veteran was informed that the VLJ who held the hearing was no longer employed by the Board, and was afforded the opportunity to testify at another hearing. In November 2020, he replied to the later and stated that he did not wish to appear at another hearing. This matter was initially before the Board in August 2019 when it was remanded so additional records would be obtained. This was done. The RO issued a Supplemental Statement of the Case (SSOC) in April 2020. The matter was denied by the Board in a June 2020 decision. The Veteran’s attorney did not receive the April 2020 SSOC and as a result, the June 2020 Board decision was vacated and the issue was remanded again so that he could be provided with a copy of the April 2020 SSOC. The Veteran’s attorney was supplied with the SSOC and filed a response. Therefore, there has been substantial compliance with the remand directive. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to Service Connection for Bilateral Hearing Loss Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The presumption of service connection applies to anyone who served on active duty for 90 days of active, continuous service. 38 C.F.R. § 3.307(a)(1); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). Post-service development of an “organic disease of the nervous system” to a degree of 10 percent within one year from the date of termination of such service, establishes a rebuttable presumption that the disease was incurred in service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307; 3.309(a). Fountain v. McDonald, 27 Vet. App. 258 (2015). Evidence of continuity of symptomatology from the time of service until present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of those frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The benefit of the doubt rule provides that a Veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 28 U.S.C § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). March 2015 VA audiometric testing as well as March 2019, October 2019, and August 2020 private audiometric testing demonstrates that the Veteran has a current diagnosis of bilateral hearing loss for VA purposes pursuant to 38 C.F.R. § 3.385. The question before the Board is whether the Veteran’s bilateral hearing loss is related to his period of active service. The Veteran contends that his bilateral hearing loss was caused by noise exposure during his active duty service. The Veteran’s DD Form 214 shows that his military occupational specialty (MOS) was a Counterintelligence Agent. In written lay statements submitted in April 2014, August 2015, and September 2019 as well as at the February 2019 hearing, the Veteran reported that he was exposed to loud noises from the metal plate stamping machine and printing system associated with his MOS and was not provided noise protection. Additionally, the Veteran qualified as an expert rifle marksman and was involved in regular and continuous participation in small arms training and shooting competitions. The Veteran stated that as a part of those responsibilities, he fired thousands upon thousands of rounds with minimal hearing protection. The Board has no reason to dispute the Veteran’s reports of in-service noise exposure, as these responsibilities would reasonably include regular exposure to loud noises from heavy machinery and weaponry. The Veteran is competent to report that he was exposed to loud noise to both ears in service, and his assertion is credible. Such contentions were consistently made during the course of the appeal. Specifically, in April 2014, the Veteran stated that he shot a number of different weapons, and regularly shot anywhere between 1000 to 2000 rounds a week without hearing protection. At this time, the Veteran also stated that he experienced a high level of noise for several hours a day using an addressograph machine in a small room with no sound damping. The Veteran reiterated these contentions in June 2015 correspondence, in his August 2015 Notice of Disagreement (NOD), at the February 2019 hearing, as well as in correspondence from March and November 2019. In November 2019, the Veteran’s former spouse stated that she was married to the Veteran in the 1970s, and she remembered that he had problems with his hearing during that time. The March 2015 VA examiner found that the Veteran’s bilateral hearing loss is less likely than not caused by or a result of an event in military service. In so finding, the examiner stated that the Veteran had normal hearing at both enlistment and separation. Further, the examiner relied on the 2006 Institute of Medicine (IOM) Study “Noise and Military Service Implications for Hearing Loss and Tinnitus,” which stated that there is no evidence, based on the current understanding of cochlear physiology, for the existence of delayed-onset hearing loss. The March 2015 examiner’s sole reliance on this study in determining that the Veteran’s hearing loss is not service-connected, without consideration of his lay statements, renders this examination inadequate, and therefore carries little probative weight. In the March 2019 private exam, Dr. C. A. found that the Veteran’s hearing loss is more likely than not secondary to excessive noise exposure while serving in the military. In coming to this conclusion, Dr. C. A. observed that the Veteran reports a having military noise exposure, was wearing hearing aids, and that the Veteran has otherwise worked in the IT industry with no significant noise exposure. Dr. C. A. also noted that the Veteran denied a family history of hearing loss and that he was combat trained and exposed to extensive explosive noise from various weapons with inadequate noise protection during service. Dr. C. A. submitted a letter to VA in October 2019, in which she affirmed her March 2019 conclusions. To support her findings, Dr. C. A. stated that the Veteran submitted evidence of exposure to decibel levels of 156 dB during rifle training, 165 dB during grenade training, 190 dB during infiltration training, and 190 dB during Crack and Thump range training. Additionally, Dr. C. A. stated that the Veteran was stationed in a position where he was exposed to a steel stamping and printing system that exposed him to dB levels of up to 125. These levels are all considered damaging. In the October 2019 private examination, Dr. D. C. found that due to the pattern of the Veteran’s audiological findings, his hearing loss is more likely than not a result of his occupational noise exposure. Further, Dr. D. C. stated that other than his military service, the Veteran’s work environment is typical of an office situation, and that noise exposure is limited to his military experience. Therefore, Dr. D. C. also found that the Veteran’s hearing loss was caused by his military noise exposure. In the August 2020 private exam, CRNP B. G. concluded that the Veteran’s hearing loss is at least as likely as not (50% probability or greater) caused by or a result of an event in military service as the Veteran had exposure to explosions and weapons without noise protection during service. CRNP B. G. stated that hair cell damage, more likely than not, occurred during the Veteran’s time in the military being exposed to artillery and machine noise. CRNP B. G. also stated that hair cell damage in the cochlea is caused from noise exposure and cannot be regenerated. As previously stated, the Board finds that the rationale of the March 2015 VA medical opinion inadequate. Further, there is nothing in the record that puts into dispute the competency or credibility of the March 2019, October 2019, and August 2020 private examiners. Therefore, those examinations carry more probative weight than the March 2015 VA examination. As a result, the Board finds that service connection can be granted on a direct basis as there is a nexus between the Veteran’s bilateral hearing loss with the Veteran’s in-service noise exposure. In light of the totality of the circumstances, and after resolving all reasonable doubt in the Veteran’s favor, the preponderance of the evidence of record supports a finding that it is at least as likely as not that the Veteran’s bilateral hearing loss was due to in-service noise exposure. Accordingly, the Board finds that granting service connection for bilateral hearing loss is the decision that is most consistent with the VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts of the case. 38 C.F.R. § 3.303(a). D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. DeVerter, 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.