Citation Nr: 21004599 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 16-19 665A DATE: January 27, 2021 ORDER The October 30, 2019, Board of Veterans' Appeals (Board) decision addressing the issue of service connection for bilateral hearing loss is vacated. Service connection for bilateral hearing loss is granted. FINDING OF FACT Resolving any doubt in the Veteran's favor, bilateral hearing loss was caused by in-service noise exposure. CONCLUSION OF LAW The criteria to establish service connection for bilateral hearing loss have been approximated. 38 U.S.C. §§ 1110, 1154; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.326(a), 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1961 to October 1964. Several points of clarification for the Veteran are necessary prior to discussing the merits of this matter. The Appeals Modernization Act (“AMA”) became effective February 19, 2019. This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review and is applicable to all claims initially decided after that date. Claims reviewed under the AMA are generally known as “AMA appeals.” However, a so-called “Legacy appeal” is one based on a decision issued prior to the effective date of the AMA. A Veteran may, under certain circumstances, opt to elect consideration of a Legacy appeal under the AMA provisions. 38 C.F.R. § 3.2400. A claimant with a Legacy appeal may elect to opt-in to the modernized review system following issuance, on or after the effective date of the modernized system, of a VA statement of the case (SOC) or supplemental statement of the case (SSOC), by filing for review option under the AMA. Id. The October 2019 Board decision, which was reviewed as a Legacy appeal, denied service connection for bilateral hearing loss and granted service connection for tinnitus. The VA Regional Office (RO) implemented the grant of service connection for tinnitus in November 2019. After the November 2019 RO implementation of the October 2019 Board decision, in December 2019, the Veteran filed a VA Form 10182 NOD under the AMA pertaining to the issue of service connection for bilateral hearing loss. He had not communicated any desire to “opt-in” to the pre-February 19, 2019, AMA pilot program (RAMP) before expiration of that program. No SOC or SSOC was issued on or after February 19, 2019, at the time of his filing, and the December 2019 opt-in was therefore invalid. Therefore, at the time of the November 2020 Board decision, which dismissed the Veteran’s claim of service connection for bilateral hearing loss, the Veteran had not perfected an appeal under the AMA for the claim of service connection for bilateral hearing loss. Therefore, the Board did not have jurisdiction to decide that claim, which is the reason the appeal was dismissed. Order to Vacate The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.904. In December 2019, the Veteran filed motion for reconsideration of the October 2019 Board decision, which denied the Veteran's claim of service connection for bilateral hearing loss and granted his claim of service connection for tinnitus. The Veteran's motion for reconsideration has been construed as a motion to vacate the October 2019 Board decision on the issue of service connection for bilateral hearing loss based on a finding of a denial of due process. The record confirms that evidence was received after the April 2019 Board hearing that was not considered by the Board at the time of its review. Accordingly, due to the denial of due process, the October 2019 Board decision which denied the Veteran's claim of service connection for bilateral hearing loss is vacated. However, the vacated denial of service connection for bilateral hearing loss does not impact the grant of service connection for tinnitus, which is undisturbed by this decision. Service Connection Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C. § § 1110. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, service connection may also be established under 38 C.F.R. §§ 3.303(b) if a chronic disease is shown in service, and subsequent manifestations of the same chronic disease at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. Service connection may also be established based upon a legal presumption by showing that a disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C. § § 1101; 38 C.F.R. § §§ 3.307, 3.309(a). In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabriel v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Further, competency of evidence differs from the weight and credibility of evidence. Competency is a legal concept that determines whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination regarding the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board must determine, on a case-by-case basis, whether a veteran's disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms, as symptoms require only personal knowledge of what is observed using his senses, not medical expertise. See Layno, 6 Vet. App. at 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. See Barr, 21 Vet. App. at 307 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. See Jandreau, 492 F.3d at 1377. The Board is responsible for determining whether the evidence supports the claim, with the veteran prevailing, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § § 5107(b); 38 C.F.R. §§ 3.102. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § § 5107(b). Service connection for bilateral hearing loss is granted. The Veteran contends that his bilateral hearing loss is related to active duty. Specifically, the Veteran contends that his current bilateral hearing loss is related to noise exposure and a lack of hearing protection in-service. Service connection for impaired hearing shall be established when the thresholds for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz are 40 decibels or more; or the thresholds for at least three of these frequencies are 26 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § § 3.385. The record reflects that the Veteran has bilateral sensorineural hearing loss which meets the requirements stated in 38 C.F.R. § § 3.385. During an October 2014 VA hearing examination, the examiner stated that a review of the claims file was conducted. The examiner opined that the Veteran's hearing loss was not at least as likely as not caused by or a result of his service. The examiner stated that while the Veteran was exposed to noise in-service, there was no evidence of hearing loss until 2014. In the April 2019 Board hearing, the Veteran testified that he believes that his hearing loss is related to his work in the submarine engine room during his service. He stated that he began to experience hearing loss at the same time that he began to experience tinnitus. After the April 2019 Board hearing, the Veteran submitted an audiological report in April 2019 that was conducted after the April 2019 Board hearing. The examiner opined that the Veteran's hearing loss is consistent with occupational noise exposure while in the Navy and hearing loss related to age. Additionally, the examiner stated that the Veteran’s degree of hearing loss in both ears is more than what would be expected for a 75 year old male. However, the examiner did not opine as to the specific etiology of the Veteran's hearing loss. In a January 2021 letter from the examiner that conducted the April 2019 audiological report, the examiner stated that the Veteran’s hearing loss is most likely caused by the result of his standing engine room watches and exposure to occupational noise without the benefit of hearing protection during his years in-service. The Veteran has submitted an article regarding noise-induced hearing loss. This evidence, when combined with the recent opinion provided by the April 2019 examiner, is probative as to the issue of the etiology of the Veteran’s bilateral hearing loss. See Sacks v. West, 11 Vet. App. 314, 316-17 (1998) (holding that a medical article or treatise can provide support for a claim but must be combined with an opinion of a medical professional and be reflective of the specific facts of a case as opposed to a discussion of generic relationships). Upon review of the record, the evidence is at least in equipoise as to whether the Veteran's current bilateral hearing loss is related to service. Accordingly, after resolving all doubt in favor of the Veteran, service connection for bilateral hearing loss is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Timothy T. Emmart 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.