Citation Nr: 21004944 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 18-06 822 DATE: January 28, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran’s bilateral hearing loss disability was caused by in-service acoustic noise exposure. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for bilateral hearing loss disability have been met. 38 U.S.C. §§ 1110, 1154(b), 5107(b); 38 C.F.R. §§ 3.303, 3.304(d), 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1964 to August 1968. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2016 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO), which denied the Veteran’s claim of entitlement to service connection for bilateral hearing loss because the evidence submitted was not new and material. This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2) and 38 C.F.R. § 20.900(c). In a March 2019 decision, the Board found that new and material evidence sufficient to reopen the previously-denied claim for service connection for bilateral hearing loss had been received. The Board then remanded the service connection claim on appeal on the merits to the agency of original jurisdiction (AOJ), for additional development. Most recently in August 2020, the Board again remanded the Veteran’s service connection claim to the AOJ, for additional development. After accomplishing the above, the AOJ continued to deny entitlement to service connection (as reflected in a September 2020 supplemental statement of the case (SSOC)). Entitlement to service connection for bilateral hearing loss 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; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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 or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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. Certain chronic diseases, including organic diseases of the nervous system such as sensorineural hearing loss, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that his bilateral hearing loss disability is due to in-service acoustic trauma he suffered from loud noises, including jet engine noise when performing repairs as a jet engine mechanic on the flight line. A December 2016 VA audiology examination report reflects that the Veteran meets the criteria for hearing loss disability in both ears. He has thus met the current disability requirement. The Veteran’s service treatment records (STRs) reveal normal hearing thresholds at both his entrance and separation examinations. However, the Veteran’s STR dated in April 1968 indicate left conductive hearing loss and that he underwent left ear surgery. Later that month, the Veteran was hospitalized following his ear surgery due to severe ear pain. In a January 2018 rating decision, the RO granted service connection for tinnitus, finding that the Veteran was exposed to hazardous noise as a result of his work as a jet engine mechanic; thus, exposure to acoustic trauma is conceded. In May 2019, a private audiologist opined that it is more likely than not that the Veteran’s hearing loss was due to his military service. As rationale, she stated that she reviewed the Veteran’s medical records, and found that his work as a jet engine mechanic on a flight line in the Air Force most likely contributed to his current hearing loss disability. Moreover, she stated that the Veteran did not have any other risk factors that may have precipitated his disability. Pursuant to the Board’s August 2020 remand directives, the Veteran underwent VA examination. The examiner noted the Veteran’s hearing loss disability, but concluded that it was less likely than not due to his active service. As rationale, she stated that no threshold shift occurred at separation, thus there was “no objective evidence of cochlear damage.” Moreover, the examiner reasoned that the Veteran’s “hearing was noted as normal upon discharge is typical of normal progression due to aging and consistent with Veteran’s age of 75.” Consequently, she opined that “[i]n the absence of a shift during active duty, there is no nexus to support hearing loss [that] resulted from military service.” The Board finds that this opinion is flawed as normal hearing upon separation is not necessarily fatal to a claim for service connection for hearing loss, and is thus afforded little, if any, probative weight. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The May 2019 private audiologist stated that the effects of the Veteran’s noise- induced damage, which included bilateral hearing loss, were at least as likely as not due to service. The audiologist provided a clear and sound rationale to support his conclusion, and her opinion is therefore afforded probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The examiner noted that she had reviewed the Veteran’s medical history and his complete medical records. She highlighted that the Veteran had served as a jet engine mechanic from 1965 to 1968 in the Air Force. It was noted that he did not have any other known risk factors that may have precipitated his current condition. In addition, the Veteran’s own lay statements regarding the onset of his hearing loss in-service, and continued diminished hearing since discharge from service are competent and credible. The Veteran’s military personnel records confirm the Veteran’s military occupational specialty (MOS) was jet engine mechanic. Moreover, the Veteran is service-connected for tinnitus and tympanoplasty, and his STRs document diminished hearing and exposure to acoustic trauma. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2008) (lay evidence may suffice to prove service connection on its own merits); Caluza v. Brown, 7 Vet. App. 498, 505 (1995) (“Lay evidence may provide sufficient support for a claim of service connection...”). The evidence is thus at least evenly balanced as to whether the Veteran’s bilateral hearing loss is related to his in-service noise exposure. As the reasonable doubt created by the relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for bilateral hearing loss is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Kovacs, 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.