Citation Nr: 21002664 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 17-47 011 DATE: January 14, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT It is just as likely as not the Veteran’s bilateral (left and right ear) hearing loss is related to or the result of hazardous noise exposure and consequent injury (acoustic trauma) during his military service. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, the criteria are met for entitlement to service connection for bilateral hearing loss. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1952 to November 1961 and from August 1962 to July 1965. This appeal to the Board of Veterans’ Appeals (Board) is from a February 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified in support of this claim during a hearing in September 2019 before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is of record. The Board subsequently, in December 2019, remanded this claim back to the Agency of Original Jurisdiction (AOJ), i.e., back to the RO, for further development and consideration – including to obtain all outstanding treatment records relevant to this claim, whether from service or since, and to have the Veteran reexamined for additional medical comment concerning the etiology of his bilateral hearing loss, particularly in terms of whether related or attributable to his service. In this decision, after considering the additional evidence obtained on remand, the Board is granting the claim. Thus, the Board need not determine whether there necessarily was compliance or even the acceptable substantial compliance with the Board’s remand directives since this ultimately is inconsequential, regardless. See Stegall v. West, 11 Vet. App. 268, 271 (1998). It also warrants mentioning that the National Personnel Records Center (NPRC) previously indicated in a February 2017 response to a records request that the Veteran’s military records were in an area destroyed by a 1973 fire in the facility. In this circumstance VA has a heightened obligation to explain its findings and conclusions and carefully consider applying the benefit-of-the-doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board must also point out, however, that the O'Hare precedent does not raise a presumption that the missing medical records, if available for consideration, necessarily would support the claim. That is to say, missing records concerning a Veteran’s claim, including service treatment records (STRs), do not lower the threshold for an allowance of a claim; there is no reverse presumption for granting a claim. The legal standard for proving a claim is not lowered; rather, the Board's obligation to discuss and evaluate evidence is heightened. See Russo v. Brown, 9 Vet. App. 46 (1996). The case law does not establish a heightened "benefit of the doubt," only a heightened duty of the Board to consider the applicability of the benefit-of-the-doubt doctrine, to assist the claimant in developing the claim, and to explain its decision when a claimant's medical records have been lost or destroyed. See Ussery v. Brown, 8 Vet. App. 64 (1995). Thus, missing STRs, alone, while indeed unfortunate, do not obviate the need for the Veteran to still have competent and credible evidence supporting his claim for service connection by suggesting a correlation between his claimed condition and his military service. See Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare, 1 Vet. App. at 367). Here, there is this required supporting evidence. Entitlement to Service Connection for Bilateral Hearing Loss Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of a relevant injury or disease, and (3) a nexus, or link, between the current disability and disease or injury in service. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran contends that service connection is warranted for bilateral hearing loss because it is the result of excessive noise exposure during his active duty service and consequent injury (acoustic trauma). The evidence of record confirms a ratable bilateral (left and right ear) hearing loss disability since VA audiological testing in July 2020, pursuant to the Board’s December 2019 remand directive, confirmed the Veteran has sufficient hearing loss in each ear to meet the threshold minimum requirements of 38 C.F.R. § 3.385.   According to this VA regulation, a ratable hearing loss disability for VA compensation purposes requires an auditory threshold of 40 decibels or greater in one of the specified frequencies of 500, 1000, 2000, 3000 or 4000 Hertz; or at least three of these specified frequencies showing an auditory threshold of 26 decibels or higher; or when speech recognition scores using the Maryland CNC test are less than 94 percent. The Veteran’s hearing loss in both ears exceeded these thresholds during the relatively recent July 2020 audiological examination. More specifically, during the July 2020 audiological evaluation, the Veteran’s pure tone thresholds, in decibels, were as follows: July 2020 HERTZ 500 1000 2000 3000 4000 RIGHT 35 45 45 60 65 LEFT 35 45 60 65 65 Speech audiometry revealed speech recognition ability of just 24 percent in the right ear and of just 36 percent in the left ear. However, the examiner marked that the Veteran’s Maryland CNC scores were inadequate for VA rating purposes. The examiner nonetheless confirmed the Veteran had sensorineural hearing loss, bilaterally, so in both ears. The records concerning the Veteran’s service show that his military occupational specialty (MOS) during his first period of active duty included extensive work on the flight line without hearing protection. He is competent to report the circumstances of his service and, further, this is consistent with his DD Form 214. During his September 2019 hearing before this Board, he testified that he was exposed to excessive noise on the flight line without hearing protection and that his MOS duties included running the afterburner on aircraft to burn off excess fuel. Noise exposure from work on the flight line is consistent with the circumstances of his service. See 38 U.S.C. § 1154(a).   The Board therefore finds that the Veteran has established both current disability and relevant noise exposure in service. He thus need only show a relationship or correlation (“nexus”) between his current disability and injury in service to, in turn, warrant the granting of service connection. See Watson v. Brown, 4 Vet. App. 309, 314 (1993). Despite the unavailability of the records from his first period of active service, between September 1952 and November 1961, an attempt to reconstruct the file included associating the Veteran’s October 1961 separation examination from his first period of active service with his claims file. Additionally, his separation examination from June 1965 is in the record. Both separation examinations include audiology test results showing his hearing was within normal limits. But, that notwithstanding, when regulatory requirements for a ratable disability are not shown at separation from service, or even within the one-year presumptive period following service for sensorineural hearing loss especially, service connection still may be established through probative evidence that the current disability is causally related to service. See Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993); see also 38 C.F.R. § 3.303(d). The Veteran also underwent a prior VA audiological examination January 2017. That examiner opined that it was less likely than not the Veteran’s bilateral hearing loss was the result of hazardous noise exposure during his service because his hearing was within normal limits at his final separation from service. However, that rationale was found to be inadequate in the Board’s December 2019 remand. During his September 2019 Board hearing that partly prompted that remand, the Veteran testified that he had significant noise exposure during his service without hearing protection, and that he had an audiological examination conducted showing this, however, that record was from his first period of active service and, thus, was lost in the NPRC fire. He also reported an onset of hearing loss in 1959, so during his first period of active service.   In November 2019, the Veteran submitted a private treatment record from an audiologist. After examination, this audiologist stated, “[i]n my opinion, a significant portion of this patient’s hearing loss and tinnitus were more likely than not caused by his exposure to jet engine noise while service in the Air Force.” This audiologist also noted the Veteran’s reported history of noise exposure, including his reported onset during his first period of active service. VA already has conceded the Veteran’s tinnitus (i.e., the ringing in his ears) is attributable to the acoustic trauma he sustained in service. So, his tinnitus already has been determined to be a service-connected disability. The Veteran as mentioned again underwent a VA examination in July 2020, on remand. The rationale provided by this additional examiner, again disassociating the Veteran’s bilateral hearing loss from his service, does not comply with the Board’s remand directives. However, as this decision is a full grant of the benefit sought on appeal, it serves to cure to the defect and, thus, is not prejudicial to the Veteran. Ultimately, the Board finds that the probative value of the November 2019 statement from a private audiologist, along with the Veteran’s lay statements concerning the circumstances of his service and his report of an in-service onset outweigh the probative value of that additional VA opinion obtained on remand. Deficiencies in the record include that the Veteran’s records from his first period of service between 1952 and 1961 were lost in the NPRC fire, specifically, the audiology test result showing some hearing loss during his active service in the Air Force.   When resolving all reasonable doubt in his favor concerning the origins of his bilateral hearing loss, service connection for this claimed disability is warranted. 38 C.F.R. § 3.102. See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (indicating “absolute” etiology is not a condition precedent to granting service connection, nor is “definite” or “obvious” etiology). Rather, this need only be an “as likely as not” proposition, which in this instance it is for the reasons and bases discussed. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Pak 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.