Citation Nr: 21004935 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 19-05 532 DATE: January 28, 2021 ORDER Service connection for bilateral hearing loss is granted. FINDING OF FACT The Veteran’s bilateral hearing loss cannot be satisfactorily disassociated from his in-service noise exposure and his service-connected tinnitus. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from June 1972 to June 1975. This matter is before the Board of Veterans’ Appeals (the Board) on appeal from a December 2017 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The rating decision confirmed the previous denial of service connection for bilateral hearing loss and denied service connection for tinnitus. The Veteran’s Notice of Disagreement (NOD) was received in January 2018. The Statement of the Case was issued in January 2019 and the Veteran’s VA Form 9, Substantive Appeal to the Board was received in February 2019. In August 2019, the Board issued a decision denying both claims. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (the Court). In an August 2020 Joint Motion for Remand (JMR), the Veteran’s attorney and the VA Office of General counsel requested that the Court vacate the Board’s August 2019 decision and remand the claims to the Board for further development and adjudication. In an August 2020 Order, the Court granted the JMR. The case was returned to the Board. While the appeal was pending at the Board, the RO issued an October 2020 rating decision granting service connection for tinnitus with an initial 10 percent disability rating assigned. As this grant of service connection is a complete grant of benefits sought on appeal with regard to that issue, it is no longer in appellate status or before the Board. Thus, the only remaining issue before the Board is entitlement to service connection for bilateral hearing loss. Entitlement to service connection for bilateral hearing loss. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a); sensorineural hearing loss is a qualifying chronic disease. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Likewise, service connection is warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). A Veteran’s lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. §§ 3.303(a), 3.159(a); See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Decreased hearing acuity is the type of symptom or disability capable of observation by a lay person. See also Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). A layperson is competent to report on the onset and continuity of his current symptomatology. See 38 C.F.R. § 3.159 (a); see also Layno v. Brown, 6 Vet. App. 465, 470 (1994). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology.” Savage v. Gober, 10 Vet. App. 488, 496 (1997) (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Impaired hearing is defined as a disability under VA law when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). On the authorized audiological evaluation in September 2020, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 50 50 55 65 70 LEFT 50 50 55 65 70 The puretone threshold average was 60 in the right ear and 60 in the left ear. Speech discrimination scores of 92 percent for the right ear and 94 percent for the left ear were noted. Thus, the Veteran has a hearing loss disability for VA purposes. The VA examiner noted that the Veteran worked as a military policeman and was required to practice firing pistols and rifles without hearing protection. The Veteran reported firing thousands of rounds without hearing protection in service. He also reported having a drill instructor who would fire rounds right next to the Veteran’s ear. The Veteran reported that he operated heavy machinery for 40 years after service but wore hearing protection. Having reviewed the Veteran’s records and contentions, the VA examiner concluded that it is at least as likely as not that the Veteran’s bilateral hearing loss was caused by his service. For rationale, the VA examiner noted reviewing the Veteran’s entrance and separation examinations and his contentions regarding post-discharge occupational noise exposure with hearing protection. The VA examiner indicated that the most compelling evidence of a nexus between service and current hearing loss is the Veteran’s experience in having rifles fired right next to his ear. The VA examiner also noted that given the Veteran’s in-service participation in shooting drills without ear protection, along with the presence of tinnitus, the Veteran’s hearing loss was at least as likely as not result of military service. Thus, the September 2020 VA examination establishes that the Veteran has current bilateral hearing loss, that his in-service occupation as a policeman caused in-service noise exposure from firing pistols and rifles without hearing protection, and that his in-service noise exposure caused his current bilateral hearing loss. The September 2020 VA examination report is afforded the highest probative value in this case as the Veteran’s records were reviewed, appropriate diagnostic testing was conducted, and the Veteran’s contentions were taken into consideration. Moreover, the Veteran’s statements regarding his in-noise exposure have been found competent, credible, and consistent with the circumstances of his service. See 38 U.S.C. § 1154 (a); 38 C.F.R. §3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). Additionally, noise exposure was previously conceded in granting service connection for tinnitus and it would inconsistent to determine that the same in-service noise exposure was sufficient to cause tinnitus but not hearing loss. In sum, the most probative evidence of record consists of the September 2020 VA examination report and the Veteran’s competent and credible lay reports regarding in-service noise exposure. This evidence links the Veteran’s current disability to his service. In essence, the medical and lay evidence of record indicates that the Veteran’s bilateral hearing loss cannot be satisfactorily disassociated from his in-service noise exposure and his service-connected tinnitus. As such, service connection for bilateral hearing loss is warranted. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kuksova, Kseniya 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.