Citation Nr: 21061568 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 17-20 482 DATE: October 4, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT The Veteran's bilateral hearing loss is related to noise exposure during active service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 1967 to November 1969, including service in the Republic of Vietnam. He received the Combat Infantry Badge, Bronze Star Medal, and Vietnam Campaign Medal, among other commendations. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), the agency of original jurisdiction (AOJ). The Veteran and his wife provided sworn testimony at a hearing before the undersigned Veterans Law Judge in July 2021. In an October 2018 rating decision, the RO granted the Veteran's claim of entitlement to service connection for tinnitus with an evaluation of 10 percent effective September 26, 2016, finding denial of service connection in the December 2016 rating decision was clearly erroneous. The issue of service connection for this disability is no longer in appeal status. 1. Entitlement to service connection for bilateral hearing loss 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, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing 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) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Alternatively, service connection may be established by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. 38 C.F.R. § 3.303 (b). To show a chronic disease in service, the record must contain a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. The use of continuity of symptoms to establish service connection is limited only to those diseases listed in 38 C.F.R. § 3.309 (a). Entitlement to service connection on the basis of a continuity of symptomatology after discharge under 38 C.F.R. § 3.303 (b) is available for sensorineural hearing loss as an organic of the nervous system. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the purposes of applying the laws administered by VA, a disability due to impaired hearing may be considered if the auditory threshold in any of the frequencies 500, 1000, 2000, 3000 or 4000 Hertz is 40 decibels or greater; or the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000 or 4000 Hertz are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Analysis The Veteran has a current diagnosis of sensorineural hearing loss. The Veteran served in combat in the Republic of Vietnam and received the Combat Infantry Badge. His military occupational specialties (MOS) were light weapons infantryman and machine gunner, which have a high probability of hazardous noise exposure. The circumstances of the Veteran's service support his claim of hazardous noise exposure during service. The first two elements required to establish service connection have therefore been met and the crux of the Veteran's appeal is whether there is a nexus between his current hearing loss and his active service. The combat presumption under 38 U.S.C. § 1154(b) lowers the evidentiary burden for combat Veterans to show proof that they incurred their disability or injury in service. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304 (d); Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). The Veteran's enlistment examination audiometric testing results were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 0 0 -- 0 0 LEFT 5 10 -- 15 10 The Veteran's discharge examination audiological testing results were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 10 10 -- 10 10 LEFT 10 10 -- 10 10 The Veteran was afforded a VA examination in December 2016. The Veteran reported that his current hearing loss makes it difficult to hear, especially "when there is a lot of outside noise." The examiner diagnosed sensorineural hearing loss. The Veteran's audiometric testing results were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 45 85 90 90 78 LEFT 40 70 80 75 66 His speech discrimination score (Maryland CNC word list) was 92 percent right ear; 90 percent left ear. The examiner opined that the Veteran's hearing loss was not at least as likely as not (50% probability or greater) caused by or a result of an event in military service. The rationale was that the Veteran served active duty in the Army from 11/1967 to 11/1969. The examiner notes that the Veteran's MOS as infantryman was highly probable for hazardous noise exposure, he reported no use of hearing protection in the service, and he was a right-handed shooter. The Veteran reported combat exposure in Vietnam from 5/1968 to 5/1969. Post-military, the Veteran worked occupationally in grocery stores (4 years) and at a chemical company from 1974-2005. Service treatment records and VA medical records were reviewed, which revealed that he had normal hearing bilaterally upon entrance audiogram in 7/1967. Normal hearing is also documented bilaterally on separation audiogram in 10/1969. Additionally, there was no significant in-service threshold shift noted at any frequency (500-4000 Hz). Service treatment records were silent for hearing loss complaint. Audiometric testing conducted pursuant to the examination revealed mild to severe sensorineural hearing loss bilaterally. The Veteran reported today that his hearing loss onset was around 4-5 years prior to the examination, to his best knowledge, which is over 40 years following military discharge. Therefore, based on the objective evidence (normal hearing on both entrance and separation audiograms), and reported onset of current hearing loss, and reported history of some occupational noise exposure, the examiner found there is no evidence on which to conclude that the Veteran's current hearing loss is as likely as not related to military hazardous noise. The Board finds that the June 2016 examiner's opinion is entitled to low probative value as to bilateral hearing loss because the examiner did not offer a sufficient rationale for his opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The examiner relied almost exclusively on the lack of in-service evidence of hearing loss in forming his opinion. Entitlement to service connection for a current hearing loss disability under 38 C.F.R. § 3.385 is not precluded where hearing was within normal limits on audiometric testing at separation from service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Although hearing loss was not shown in service, acoustic trauma or military noise exposure may constitute injury of the ear. Even if disabling loss is not demonstrated at the time of separation, evidence of a current hearing loss disability under 38 C.F.R. § 3.385 and a medically sound basis sufficient to attribute that disability to service (as opposed to after-service causes) may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The examiner failed to adequately address the Veteran's combat service and his (MOS) of light weapons infantry, which the examiner noted has a high probability of exposure to hazardous noise. The examiner did not address the Veteran's MOS of machine gunner as noted on his Record of Assignments. The examination and opinion are inadequate for failing to take into account all of the evidence of record. Barr v. Nicholson, 21 Vet. App. 303 (2007). The opinion was also inconsistent with the contemporaneous tinnitus examination and opinion, which stated that the Veteran's MOS during service would have exposed him to noise levels adequate to cause changes to his auditory system and produce acoustic trauma. The Board notes that the subsequent denial of service connection for his tinnitus was determined to be clear and unmistakable error and service connection was granted in an October 2018 rating decision with an evaluation of 10 percent effective September 26, 2016. Finally, the examiner relied heavily on the passage of time between service and diagnosis but failed to address delayed onset hearing loss. The Director of the VA Compensation and Pension Service observed in Training Letter 10-02 that delayed-onset hearing loss and tinnitus must be considered in the service-connection analysis. The Veteran and his wife testified at a July 2021 hearing. The Veteran testified that he hears a lot less in his right ear and that he hears a little bit better in his left ear. The right ear has ringing more loudly and interferes with his hearing. He stated that he doesn't know whether the artillery or shooting had anything to do with his hearing loss but it's not getting any better. The Veteran's representative pointed out that the Veteran's right ear is "his shooting arm ear" and noted his combat service. He stated that he has a hard time dealing with the buzzing in his ears. He stated that he has problems communicating, he can't hear what they're saying. The Veteran's wife of 50 years testified that coworkers would say he was having hearing problems. She stated that he has been retired for 15/16 years and even before then had trouble hearing. She stated that the ringing in his ears has been there for as long as she could remember; he just learned to live with it. She stated that she was finally able to get him to have his hearing checked in 2016. She stated that he is determined not to have hearing aids but more often than not, "I'm his ears." She explained "He'll ask me --well what did they say, or what is that?" The Veteran also testified that post-discharge, he worked in a grocery store and then for a chemical company. He testified that his grocery store job did not involve any exposure to loud noise. As for his chemical company job, he stated that he started with readings on tank levels and then worked inside jobs. He stated that he didn't stay outside with the compressors that were running; mainly he stayed inside. He stated, "The whole thing was run through computer, and I was an inside person." The Veteran additionally testified that he was not exposed to any kind of loud noises after he got out of service like he was exposed to during service. He stated that during service he was exposed to noise from enemy fire and artillery. They would guard for artillery, on the outside perimeter. He stated, "There were big guns firing all the time, they just -- they were really loud." Because he was exposed to loud noises in service, and was not exposed to loud noises after service, he indicated that he believes that his hearing loss is related to his service exposure. In summary, the evidence shows a diagnosis of hearing loss and an in-service incurrence based on the Veteran's combat service and MOS. Further, the Veteran's competent and credible statements and testimony regarding in-service noise exposure are consistent with the circumstances of his service and military records. Hearing loss is considered a chronic disorder under the applicable regulations and the Veteran's credible statements and testimony and his wife's testimony provide sufficient evidence of a continuity of symptoms to support a nexus of his hearing loss disability to service. Accordingly, the Board finds that the evidence is at least in relative equipoise and it is at least as likely as not that the Veteran's bilateral hearing loss is proximately caused by in-service hazardous noise exposure. Therefore, reasonable doubt is resolved in favor of the Veteran and entitlement to service connection for bilateral hearing loss is warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Debra B. McLoughlin, 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.