Citation Nr: 21067107 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 18-16 636 DATE: November 3, 2021 ORDER Entitlement to service connection for left ear hearing loss is granted. FINDING OF FACT The most probative evidence of record reflects that the Veteran's left ear hearing loss is related to in-service noise exposure. CONCLUSION OF LAW The criteria for establishing service connection for left ear hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 1964 to December 1966, including service in the Republic of Vietnam. This case comes to the Board of Veterans' Appeals (Board) on appeal from a December 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with the AOJ's determination, and the present appeal ensued. The issue of left ear hearing loss was previously before the Board in September 2020, when it was part of a claim for bilateral hearing loss. In September 2020, the Board granted the Veteran's claim for service connection for right ear hearing loss and remanded the claim for service connection for left ear hearing loss for additional development. The Veteran's appeal has been returned to the Board for further appellate consideration. Entitlement to service connection for left ear hearing loss Service connection may be established for a disability resulting from diseases or injuries which are clearly present in-service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in-service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection on a direct basis generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also 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). Hearing loss is considered to be a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition thresholds using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). Additionally, other organic diseases of the nervous system, which may include sensorineural hearing and tinnitus, are classified as "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) also applies. 38 C.F.R. § 3.307; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015) (including tinnitus as an organic disease of the nervous system). Presumptive service connection for "chronic diseases" must be considered on three bases: chronicity during service, continuity of symptomatology since service, and manifestations within one year of the veteran's separation from service. Walker, 708 F.3d at 1338. Lay statements may serve 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 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, VA shall give the benefit of the doubt to the Veteran. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The Veteran and his representative contend that the Veteran's in-service noise exposure has caused his left ear hearing disability. Additionally, they assert that the Veteran's claim for left ear hearing loss should be granted for the same reasons his right ear hearing loss was granted service connection in September 2020. A February 2021 VA audiological examination report shows that the Veteran has a current diagnosis of left ear hearing loss for VA purposes under 38 C.F.R. § 3.385. As such, the first element required to establish service connection, a current disability, has been satisfied. In service, the Veteran's military occupational specialty (MOS) was radio mechanic. The Veteran has described his in-service noise exposure as having been around engines on the "flight line," without hearing protection. Additionally, he was a Rifle Sharpshooter in the Republic of Vietnam. Therefore, noise exposure during service has been conceded, and the second element for service connection, an in-service incurrence, event, or injury, has been established. As to the final element required to establish service connection, a nexus between the in-service incurrence and the current disability, the Veteran's has been provided with two VA audiological examinations throughout the appeal period. The November 2017 VA examiner opined that there is no nexus between the Veteran's in-service noise exposure and current hearing loss because there is little or no research to support delayed onset hearing loss after noise exposure. A second VA examiner, in February 2021, provided a negative nexus opinion, also relying on an absence of evidence supporting delayed onset hearing loss and lack of documented threshold shift in service. Generally, the degree of probative value attributed to a medical opinion issued by a VA or private treatment provider takes into account certain factors, including the opinions thoroughness and degree of detail, and whether there was a review of the claims file. Prejean v. West, 13 Vet. App. 444 (2000). The analysis also includes whether the examining medical provider had a sufficiently clear and well-reasoned rationale and a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185 (1999). The Board has been charged with the duty to assess the credibility and weight given to the evidence. The Board concludes that the November 2017 and February 2021 medical opinions are of little probative value concerning the etiology of the Veteran's hearing loss. In both instances the examiners justified providing negative nexus opinions on a believed lack of evidence to find delayed onset hearing loss and lack of hearing loss at the time of separation. Service connection for a current hearing loss disability under 38 C.F.R. § 3.385 is not precluded where the Veteran's hearing was found to be within normal limits on audiometric testing at separation from active military service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). 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 to grant entitlement to service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Board further notes that the Director of the VA Compensation and Pension Service observed in Training Letter 10-02, issued March 2010, that delayed-onset hearing loss be considered in the service-connection analysis. As the Board finds the November 2017 and February 2021 medical opinions inadequate, they are given little evidentiary weight. The November 2017 examiner concluded that the Veteran's left ear hearing loss is multifactorial, which suggests that noise exposure is at least partially a cause of his current left ear hearing loss. Although the Veteran did not receive a medal indicative of combat, evidence, including the Veteran's statements and places, types, and circumstances of service, reflects that he did engage in combat with the enemy. VAOPGCPREC 12-99 (October 18, 1999) (combat determination should be made on a case by case basis where there is no medal specifically indicating combat service); Gaines v. West, 11 Vet. App. 353, 359 (1998) (evidence submitted to support a claim that a veteran engaged in combat may include the veteran's own statements and an "almost unlimited" variety of other types of evidence); Sizemore v. Principi, 18 Vet. App. 264 (2004) (receiving enemy fire or firing on an enemy can constitute participation in combat). The finding that the Veteran engaged in combat is significant because it allows a combat veteran to use "satisfactory lay or other evidence" to establish that he was injured or incurred a disability while on active duty, even in cases where "there is no official record" that such injury or disability occurred. Reeves v. Shinseki, 682 F.3d 988, 998 (Fed. Cir. 2012) (quoting 38 U.S.C. § 1154(b)). The Board therefore accepts the Veteran's testimony that he suffered acoustic trauma in service. Moreover, the fact that the claimed cause of the Veteran's hearing loss, i.e., acoustic trauma, is therefore established by his testimony, does not prevent him from also invoking 38 U.S.C. § 1154(b) rules in order to show that he incurred the disability itself while in service. Reeves, 682 F.3d at 999. The Veteran's statements implied that he began experiencing hearing loss after coming under enemy fire in service. The Board also finds that the Veteran's statements of continuity of symptoms together with the fact that his left ear hearing loss is chronic disease of the nervous system additionally supports a link between this disability and the Veteran's active service. Accordingly, and resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for the Veteran's left ear hearing loss is warranted. 38 U.S.C. § 1110, 1131, 5107(b); 38 C.F.R. § 3.102; 3.303(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. W. Morgan, 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.