Citation Nr: 21004075 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 15-21 639 DATE: January 25, 2021 ORDER Entitlement to service connection for bilateral sensorineural hearing loss is granted. FINDING OF FACT There is an approximate balance of positive and negative evidence as to whether the Veteran's bilateral sensorineural hearing loss is related to military service. CONCLUSION OF LAW Resolving doubt in the Veteran's favor, the criteria for service connection for a bilateral hearing loss disability are 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 March 1986 to March 1990 and from January 1991 to March 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office. In August 2018, the Veteran testified at a videoconference before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the evidentiary record. In April 2020, the Board noted that a September 2018 VA medical treatment record indicated mild to moderately severe hearing loss in the left ear, and the matter was remanded to the Agency of Original Jurisdiction (AOJ) for additional development, to include VA examination. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). To establish an entitlement to service connection for a disability, a Veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain disabilities, such as organic diseases of the nervous system that include sensorineural hearing loss, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden elements for certain chronic disabilities such as sensorineural hearing loss is through a demonstration of continuity of symptomatology. Determinations regarding service connection are based on a review of all of the evidence in the record, including all pertinent medical and lay evidence. 38 U.S.C. § 1154(a) (2012); 38 C.F.R. § 3.303(a) (2019). A layperson is competent to report on the onset and continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2007). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b). For VA to deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert v. Derwinski, 1 Vet. App., at 54. Bilateral Hearing Loss The Veteran seeks entitlement to service connection for bilateral hearing loss from exposure to loud noises as a mechanic working on Bradley tanks and around heavy equipment during military service. He contends impaired hearing has continued since this exposure. Service connection for impaired hearing shall only be established when hearing status meets specified pure tone and speech recognition criteria by audiometric testing. 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 (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Tests are less than 94 percent. 38 C.F.R. § 3.385. Additionally, it is noted that the threshold for normal hearing is from 0 to 20 dB, and higher threshold levels indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The absence of in-service evidence of hearing loss disability during a Veteran's period of active duty is not fatal to a claim for service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Competent evidence of a current hearing loss disability (i.e., one meeting the requirements of section 3.385, as noted above), and a medically sound basis for attributing such disability to service, may serve as a basis for a grant of service connection for hearing loss disability. See Hensley v. Brown, 5 Vet. App. Vet. App. 155, 159 (1993). The Veteran underwent an August 2014 VA examination, which revealed a right ear hearing loss disability based on a Maryland CNC speech discrimination score of 92 percent, while the left ear was normal for VA purposes with a score of 94 percent. There were no auditory thresholds at 40 dB or above during the examination. Pursuant to the Board’s April 2020 remand, an October 2020 VA audiological examination was performed. The Veteran’s speech recognition was 92 percent for each ear on the Maryland CNC. Furthermore, the evaluation also revealed an auditory threshold of 45 dB in the 4000 Hz frequency in both ears. The record shows the Veteran has a bilateral hearing loss disability for VA purposes. The first Shedden element for service connection is met. Therefore, the question to be decided in the present appeal is whether the current bilateral hearing loss disability is associated with the Veteran's active duty. In this regard, the Board acknowledges that service treatment records (STRs) are negative for complaints of, treatment for, or findings of hearing loss or tinnitus. However, when considering the circumstances of the Veteran's primary military specialty of track vehicle repairman, the Board conceded exposure to noise during service in the April 2020 decision and granted entitlement to service connection for tinnitus related to that acoustic trauma. Thus, the second Shedden element is met. Regarding the third and final Shedden element, the Veteran testified at the August 2018 hearing that he had problems with worsening hearing for a long time, when he finally went to the VA for testing and received hearing aids. Moreover, the Veteran testified that his post-service occupation as a truck driver did not expose him to loud noise levels, therefore he attributed his hearing loss to noise exposure during military service. The Veteran is competent to report continued symptoms of hearing loss in the ears during since service. His statements are credible and entitled to probative weight. The Board notes that negative nexus opinions were provided at VA audiological examinations in August 2014 and October 2020, wherein the examiners opined that the Veteran's current hearing loss was not less likely related to his exposure to noise in service and referenced a lack of documented evidence in the Veteran’s STRs. The August 2014 examiner relied solely on the absence of evidence, citing a medical treatise to establish that noise induced hearing loss will not progress once the noise ceases, while the October 2020 examiner relied heavily on the absence of evidence, citing a post-service March 1997 audiology report as evidence of no permanent acoustic damage. The absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim for bilateral hearing loss. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Thus, the August 2018 and October 2020 examinations are of limited probative value. Taking into consideration the Veteran’s reports, the Board finds that the evidence is in relative equipoise regarding whether there is a nexus between the current hearing loss and the acoustic trauma in service. In light of the Board’s 2020 decision conceding the Veteran’s acoustic trauma in service, the current diagnoses of bilateral sensorineural hearing loss, the Veteran's credible statements reporting continuing symptoms since service, and resolving   reasonable doubt in the Veteran's favor, service connection for bilateral hearing loss is warranted. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Gipson, 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.