Citation Nr: 21063724 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 15-08 026 DATE: October 15, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his bilateral hearing loss disability is at least as likely as not related to noise exposure during service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss disability are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1961 to September 1963. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection for hearing loss. In February 2016, March 2017, June 2019, and March 2021 the Board remanded the Veteran's appeal to the RO for further evidentiary development. Entitlement to service connection for bilateral hearing loss. The Veteran contends that his bilateral hearing loss had its onset during active duty service and is the direct result of acoustic trauma sustained therein. See, e.g., February 2012 Claim. He has endorsed exposure to noise in association with his duties as a supply clerk in the Republic of Vietnam from September 1962 to September 1963, including being in frequent close proximity to helicopters without the use of hearing protection. See March 2016 Statement from Veteran. The question for the Board is whether there is sufficient evidence to find the Veteran's bilateral hearing loss disability is related to service. For the reasons discussed below, the Board concludes the evidence supports a grant of service connection. VA regulations provide a specific definition for what constitutes a hearing disability for VA compensation purposes. Under 38 C.F.R. § 3.385 , hearing loss is 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. So, it is possible for a Veteran to have a hearing impairment that does not rise to a level to become a disability for entitlement to VA compensation. Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007). Entitlement to service connection requires evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and the disease or injury incurred or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (2007). Service connection may also be established for certain chronic diseases by satisfying the test for disability compensation for chronic diseases set forth in 38 C.F.R. § 3.303(b). Walker v. Shinseki, 708 F.3d 1331, 1334 (2013). One method is to show the Veteran has (1) a current chronic disease listed under 3.309(a) and (2) that disease must have been "shown in service." Id. at 1335. As to (1), "organic diseases of the nervous system" are listed under § 3.309(a). Bilateral sensorineural hearing loss is an organic disease of the nervous system and thus falls within § 3.309(a). As to (2), 38 C.F.R. § 3.303(b) equates "shown in service" with a reliable diagnosis of the chronic disease while in service. Walker, 708 F.3d at 1335. Another method is to show continuity of symptomatology. Continuity of symptomatology may be demonstrated if a claimant can show (1) a condition was "noted" during service; (2) post-service evidence of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495 (1997). Section3.303(b) does not require medical evidence of an etiological link between service and a current disability. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). In order to prevail on a claim for benefits, the Veteran need only demonstrate there is an approximate balance of positive and negative evidence. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). This is because the Veteran is entitled to the "benefit of the doubt" when the evidence is approximately balanced. Id. at 53. Turning to the present claim, the first question for consideration here is whether the Veteran has a current disability. Numerous VA Audiological examinations conducted throughout the appeal period confirm that the Veteran has a bilateral hearing loss disability for VA purposes. See, e.g., August 2021 VA Hearing Loss/Tinnitus Disability Benefits Questionnaire (DBQ); see also 38 C.F.R. § 3.385. As such, the current disability requirement has been met in this case. With respect to in-service incurrence of a disease or injury, the Veteran has competently reported that he experienced audiological symptoms during service and that he was exposed to loud noise while serving in Vietnam. His reports are considered to be credible in this regard as loud noise exposure is consistent with the facts and circumstances of service, i.e., his duties as a supply specialist in a combat zone. Moreover, while the Veteran's service treatment records (STRs) do not show complaints, treatment, and/or diagnoses of hearing loss, the separation examination shows some hearing loss in both ears at 500 Hz. Considering the separation examination was conducted before January 1, 1967, the Board assumes the ASA standard was used. When the numerical scores from his audiometric testing at separation are converted to ISO standards, it shows the auditory threshold of 25 decibels at 500 Hz. The threshold range for normal hearing is 0 to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Thus, the Veteran's STRs provide medical evidence of some bilateral hearing loss at 500 Hz. Considering the Veteran's competent and credible reports of in-service acoustic trauma and his separation examination showing some hearing loss during service, there is enough favorable evidence to resolve doubt in his favor with respect to in-service incurrence. With respect to nexus, the Board has remanded this particular claim for VA etiology opinions in 2016, 2017, 2019, and 2021. Opinions were obtained in 2013, 2016, 2017, 2018, and 2021; all of these examiners reached the same conclusion, namely, that the Veteran's hearing loss was less likely than not related to service. However, all of the opinions, with exception of the August 2021 opinion, have been deemed inadequate by the Board for failure to address one or more of the following: (a) audiometric findings as noted in the report of the Veteran's July 1963 separation examination as converted from ASA units to ISO units; (b) the Veteran's post-service history of working in the airline industry; (c) the April 2012 private treatment report noting a diagnosis of hearing loss, a history of familial hearing loss, and unprotected noise exposure; (d) a January 2013 statement from Dr. N.A.O.V. relating the Veteran's hearing loss to his in-service noise exposure; and (e) the Veteran's allegations of continuity of symptoms of diminished hearing since service. Unfortunately, the most recently obtained VA opinion, dated in August 2021, again fails to address the Veteran's bilateral hearing loss at 500 Hz on separation from service; the January 2013 private opinion from Dr. N.A.O.V.; and the Veteran's statements regarding continuity of hearing loss symptoms. As such, this opinion does not substantially comply with the Board's previous remand directives and is afforded little probative value as to the issue of nexus. Nevertheless, as noted, the Veteran has submitted a favorable, private medical opinion in support of his claim. In a January 2013 statement, Dr. N.A.O.V. noted that the Veteran had been exposed to loud noises for a prolonged period of time while serving in Vietnam in the Army from 1961 to 1963. He stated, "As we know, prolonged exposure to noises of high intensity causes permanent hearing damage in the inner structures of the ear, resulting in irreversible hearing loss. It is reasonable to assume that [the Veteran] is presenting tinnitus and hearing loss that's service-connected secondary to noise exposure." The private opinion is probative to the extent that it considered the Veteran's in-service noise exposure and is supported by fully articulated and sound rationale. In light of the foregoing, the Board finds that the evidence is, at least, approximately balanced on the issue of a nexus. The VA medical opinions have been found to be incomplete and of little probative value. The remaining items of evidence consist of the Veteran's competent and credible lay statements regarding the onset/continuity of his audiological symptoms and Dr. N.A.O.V.'s probative, favorable medical opinion. Collectively, this evidence supports a finding of a nexus between the Veteran's currently diagnosed bilateral hearing loss disability and in-service noise exposure. In sum, the Veteran has established he has a current disability, an in-service injury, and a nexus between them. Resolving any remaining reasonable doubt in the Veteran's favor, the claim for entitlement to service connection for bilateral hearing loss is granted. 38 U.S.C. § 5107(b); Gilbert, supra. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Hoeft 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.