Citation Nr: 21002392 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 18-55 343A DATE: January 13, 2021 ORDER New and material evidence having been received, the previously denied claim for service connection for bilateral sensorineural hearing loss is reopened. Entitlement to service connection for bilateral sensorineural hearing loss is granted. FINDING OF FACT 1. In January 2015, the Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for bilateral sensorineural hearing loss, finding that there was no medical link between hearing loss and the Veteran’s military service and that hearing loss did not manifest to a compensable degree within a year of the his discharge from active service. 2. The evidence added to the record since the January 2015 RO decision was not previously submitted to agency decisionmakers, is not cumulative or redundant and, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for bilateral sensorineural hearing loss. 3. Resolving reasonable doubt in the Veteran’s favor, the probative evidence of record demonstrates the Veteran’s bilateral sensorineural hearing loss is related to noise exposure during his active service. CONCLUSION OF LAW 1. Following the final January 2015 rating decision, new and material evidence has been presented to reopen the claim of service connection for bilateral sensorineural hearing loss. 38 U.S.C. §§ 1110, 1131, 5108, 7105; 38 C.F.R. § 3.156(a). 2. The criteria for service connection for bilateral sensorineural hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1966 to August 1968. New and Material Evidence The January 2015 rating decision denied service connection for bilateral sensorineural hearing loss. This decision was not appealed and is therefore final. See 38 U.S.C. § 7105; 38 C.F.R. § 3.104. Following this decision, the VA has received new and material evidence, specifically a January 2020 private medical opinion finding hearing loss is related to noise exposure in service, to reopen the claim of service connection for bilateral sensorineural hearing loss. 38 U.S.C. §§ 1110, 1131, 5108, 7104, 7105; 38 C.F.R. § 3.156. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board of Veterans’ Appeals (Board) is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran has a current diagnosis of bilateral sensorineural hearing loss that is related to noise exposure during his active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The Veteran contends that he was exposed to noise from tanks in the unit he was assigned to during his active service. His DD Form 214 and service personnel records reflect his military occupational specialty (MOS) as a medical specialist and was assigned to an infantry unit in 1967 and 1968 during his service in Germany, thereby supporting his statements of exposure to excessive noise during active service. See 38 U.S.C. § 1154. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Baldwin v. West, 13 Vet. App. 1 (1999); see also Dalton v. Nicholson, 21 Vet. App. 23 (2007). Private medical records from July 2014 to December 2019 and a November 2014 VA examination demonstrate the Veteran has a current diagnosis of bilateral sensorineural hearing loss which meets the criteria for a hearing loss disability for VA compensation purposes. 38 C.F.R. § 3.385. Although the VA examiner, a licensed audiologist, who provided the November 2014 and July 2018 VA opinions, found the Veteran’s bilateral sensorineural hearing loss was less likely than not incurred in or caused by an in-service injury, event or disease, in a January 2020 private medical report, a private specialist in otolaryngology opined that the Veteran’s bilateral sensorineural hearing loss was more likely than not caused by loud noise exposure during the Veteran’s active service. The private specialist’s opinion was based on the Veteran’s reported history, a review of his post-service private audiology reports and a physical examination. While the VA examiner reviewed the Veteran’s service records and noted his MOS had a low probability of noise exposure, she did not acknowledge the fact that his unit was assigned to an infantry division, which supports his lay statements of noise exposure in service. In addition, in both opinions, the VA examiner relied upon the 2006 study by The Institute of Medicine to support her conclusion, without addressing the apparent conflicting findings of the study that while evidence is sufficient to conclude most pronounced effects of noise exposure are measurable immediately, "there is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure." See McCray v. Wilkie, 31 Vet. App. 243, 253, 257 (2019) (remarking that failure to reconcile this inconsistency can render a VA examination inadequate). In a December 2020 Informal Hearing Presentation, the Veteran’s representative cited to several medical sources regarding noise exposure and the development of late onset hearing problems. Accordingly, the Board affords more probative weight to the January 2020 private specialist’s opinion. Taken together, these records, at the very least, place the evidence in a state of relative equipoise as to whether bilateral sensorineural hearing loss was incurred during the Veteran’s active service. Therefore, after resolving all doubt in favor of the Veteran, the Board finds that service connection for bilateral sensorineural hearing loss is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Saira Spicknall, 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.