Citation Nr: 21063330 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 19-00 232A DATE: October 14, 2021 ISSUE Entitlement to service connection for bilateral hearing loss disability. ORDER Entitlement to service connection for bilateral hearing loss disability is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran's current bilateral hearing loss disability was incurred as a result of in-service noise exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for a bilateral hearing loss disability have been met. 38 U.S.C. §§ 1110, 1131, 5107 (b); 38 C.F.R. §§ 3.102, 3.303, 3.304 (d), 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 7, 1994 to December 30, 1997 and from May 21, 1994 to May 22, 1994. This case is before the Board of Veterans' Appeals (Board) on appeal from a December 2016 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran was afforded a hearing before the undersigned Veterans' Law Judge in January 2021. A copy of the transcript is enclosed in the Veteran's claims file. The Board notes that new evidence, including VA treatment records, were added to the claims file since the statement of the case (SOC) was issued in January 2019. It does not appear from the record that the Veteran submitted a waiver of review of that evidence by the Agency of Original Jurisdiction (AOJ). However, as discussed below, the evidence of record is sufficient to grant in full the claim of service connection for bilateral hearing loss. Therefore, a remand for AOJ consideration of the new evidence as to that issue is not warranted, and the Veteran would not be prejudiced by proceeding with a final decision on this issue at this time. Service Connection Generally, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Certain diseases shall be presumed to have been incurred in or aggravated in service, even though there is no evidence of such disease during the period of service, if they manifest within a specified time period following service. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as opposed to merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101 (3); 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Organic diseases of the nervous system, including sensorineural hearing loss, are considered by VA to be chronic diseases. 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Where a chronic disease under 3.309(a) is "shown as such in service" ("meaning clearly diagnosed beyond legitimate question," Walker, 708 F.3d at 1339 ), or in the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." 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, 1 Vet. App. at 54. Entitlement to service connection for bilateral hearing loss disability. The Veteran contends that he is entitled to service connection for his bilateral hearing loss disability. The Veteran claims that he began to experience chronic hearing loss from acoustic trauma while on active- duty service. Additionally, he asserts that his bilateral hearing loss disability has continuously caused limitations for him since discharge from service. Turning to the first element of service connection, which is a current disability, the medical diagnosis of hearing loss disability is measured with a numerical criteria as defined by pertinent VA regulation. With respect to claims for service connection for hearing loss, impaired hearing will be considered a disability when: (1) the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; (2) the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or (3) 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, with higher threshold levels indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In December 2018 the Veteran attended a VA examination for hearing loss where he was given an audiological examination. At that time the examiner diagnosed sensorineural hearing loss for VA purposes in accordance with 38 C.F.R. § 3.385. This examination, noted at the test frequencies of 500, 1000, 2000, 3000, and 4000 Hertz, the results were 20, 15, 20, 20, and 45 for the right ear, and 15, 15, 20, 40, and 50 for the left ear. His left ear was found to have 94 percent speech discrimination. The average decibel loss is 31 in the left ear. The right ear shows a speech discrimination of 96 percent. The average decibel loss is 25 in the right ear. As the Veteran has been found to have a current disability, he has met the first criteria for entitlement to service connection. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). As to the second element of service connection, which is an in-service event, in-service incurrence or aggravation of a disease or injury, the Board finds the Veteran to be a reliable historian of his experiences and noise exposure in service. See Jandreau, 492 F.3d at 1377. The Veteran asserts that he worked as a field wireman and experienced excessive noise exposure while in service. The Veteran's DD-214 confirms his military occupational specialty (MOS), and it is consistent with his assertions of noise exposure. Furthermore, the Veteran testified at the January 2021 Board Hearing that while in basic training a grenade simulator launch went off in his tent and he began to experience hearing loss following this incident. Therefore, upon review of the Veteran's claims file, the Board concedes the Veteran's assertions of acoustic trauma in service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. Thus, the Veteran has also met the second criteria for entitlement to service connection. Id. Addressing the third prong of Shedden, a nexus between the current disability and conceded in-service noise exposure, the Board turns to the medical opinion as well as the lay statements of record. As previously mentioned, the Veteran was afforded a VA examination for his bilateral hearing loss in December 2018. At that time the examiner opined that it was less likely than not that the Veteran's bilateral hearing loss was caused by any event in service. In providing a rationale, the examiner explained that the Veteran's enlistment examination in October 1977 and his discharge examination in December 1977 showed that he had normal hearing loss with no significant shifts at any levels. The examiner further explained that the Veteran did not have permanent auditory damage while on active duty. The examiner acknowledged that the Veteran's MOS of field wireman had a moderate probability of noise exposure, but that his hearing thresholds did not shift until years later after his years in the Reserves and after occupational noise exposure. The Board has also reviewed the Veteran's lay statements and hearing testimony that his hearing loss disability was connected to events which occurred in-service. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). With respect to the Veteran's statements, in a January 2017 Notice of Disagreement (NOD) the Veteran stated that he had good hearing prior to entering into service but began to have problems in basic training while firing the weapons. During the January 2021 Board hearing, the Veteran reported that in the Army his MOS was field wireman, and he was not issued any hearing protection. He reported that he would constantly hear bombs going off. He also testified to an incident where a fellow service man threw a grenade simulator into the mess tent where he was at, and that his hearing loss really started after that incident. The Veteran testified that after separation from service he consistently noticed problems with his ears. He also testified that he was married and that his wife complained about his hearing problems as well. Finally, the Veteran testified that following discharge, although he worked as an industrial electrician, he was required to wear earplugs at all times. In weighing the evidence of record the Board finds the Veteran's reports of the in-service onset of his hearing loss disability and its continuation thereafter both competent and credible. Further, the Veteran's statements also amount to evidence of continuity of symptomatology which would warrant consideration of 38 C.F.R. § 3.303 (b), as well as the presumptive provisions of 38 C.F.R. §§ 3.307 and 3.309(a). There is no reason to doubt the credibility of the Veteran's statements, and thus the Board has determined that continuity of symptomatology has been established to grant the Veteran's claim of service connection for a hearing loss disability. See Walker, supra. In so finding, the Board acknowledges that the examiner who conducted the December 2018 VA examination opined that the Veteran's current hearing loss disability was not related to service, stating that there was no evidence of significant shifts at any levels while on active duty. To this extent the Board finds this opinion inadequate as the examiner failed to consider that the absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385) 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. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The examiner also failed to consider the Veteran's competent lay statements with regard to onset of hearing problems beginning while he was on active-duty service. It is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 204 (2008). VA must consider all lay and medical evidence of record. 38 U.S.C. § 1154 (a); 38 U.S.C. § 5107; 38 C.F.R. § 3.303. As the December 2018 VA opinion fails to account for the Veteran's lay statements of chronicity of symptoms of hearing loss, the Board finds this opinion less probative. Accordingly, after careful review of the record, including the medical evidence and the lay statements of record, and resolving any reasonable doubt in the Veteran's favor, the Board finds that the evidence regarding nexus is in relative equipoise and is sufficient to establish service connection to the Veteran's period of active service based on the continuity of symptomatology. As such, service connection for a bilateral hearing loss disability is warranted. See 38 U.S.C. §§ 5107(b); 38 C.F.R. §§ 3.102, 3.303 (b), 3.309. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Nettey, 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.