Citation Nr: 21067520 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 18-42 967 DATE: November 4, 2021 ORDER Service connection for bilateral hearing loss is granted. FINDING OF FACT The Veteran's bilateral hearing loss is etiologically related to his active service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 1962 to January 1965. In April 2019, the Board of Veterans' Appeals (Board) in April 2019 reopened the previously denied claim for service connection for bilateral hearing loss and denied the underlying issue of entitlement to service connection for the same. The Veteran subsequently appealed the Board's decision denying service connection for bilateral hearing loss to the United States Court of Appeals for Veterans Claims (Court). In a September 2020 memorandum decision, the Court set aside the Board's April 2019 decision denying service connection for bilateral hearing loss and remanded the claim to the Board for further adjudication. 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, 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Additionally, service connection can also be established through application of a statutory presumption for chronic diseases, including organic diseases of the nervous system, such as hearing loss, when manifested to a compensable degree within a year of separation from service. 38 C.F.R. §§ 3.307, 3.309. If a chronic disease is not manifested to a compensable degree within a year of separation of service, then, generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Furthermore, a layperson is competent to report on the onset and continuity of his or her current symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). For the purpose of applying the laws administered by VA, impaired hearing is considered a "disability" 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 the above frequencies are 26 decibels or higher; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran contends that his current right and left hearing loss symptoms began while he was in active service. His VA and private treatment records clearly demonstrate that he has been diagnosed with bilateral hearing loss for VA purposes. Thus, the current disability prong of this claim is met, and the remaining question is whether his bilateral hearing loss is medically linked to any incident of service or whether it onset therein. The Board notes that this claim was previously denied based upon an addendum VA negative nexus opinion rendered in January 2008, following a December 2007 VA hearing loss examination. While the Board cannot ignore or disregard the VA examiner's medical conclusions [Willis v. Derwinski, 1 Vet. App. 66 (1991)], the Board is free to assess medical evidence and is not compelled to accept a medical opinion. This examiner's opinion was based upon findings that the Veteran's separation audiogram revealed "normal" hearing and that his entrance examination revealed "normal" whisper tests. This rationale is problematic for many reasons. As an initial matter, whisper tests, which are not scientifically accurate, cannot be used to assess the level of hearing loss on the Veteran's entrance examination. Further, there is no indication that the examiner realized that the Veteran's separation hearing examination audiometric test results were reported in standards set by the American Standards Association (ASA), and needed to be converted into the International Standards Organization-American National Standards Institute (ISO-ANSI) standards, which have been used since December 31, 1970. Had the examiner attempted to convert them, he would have realized that it could not be done completely, because the separation audiogram did not test the Veteran's hearing at 3000 Hz. Regardless, and lacking any sort of reliable data for comparison for the Veteran's hearing acuity when he entered service, there is no way to tell whether there was a significant shift in his hearing acuity in service based solely on his service treatment records. Further, the 2007 VA examination report does not show that the Veteran was asked about the history, or onset, of his hearing loss symptoms. Thus, the opinion did not take into account the Veteran's statements about his recollection of when his symptoms began. As such, the Board affords this negative nexus opinion no probative value. Rather, the only competent evidence of record regarding the Veteran's change in his hearing acuity in service is found in his competent reports of the onset, and history, of his hearing loss symptoms. He has consistently reported in written lay statements that his hearing loss symptoms onset in service, when he was exposed to hazardous noise in his military occupational specialty (MOS) in the form of radio noise and repair noise while not wearing any hearing protection. His in service noise exposure has already been conceded. Although the July 2018 statement of the case (SOC) acknowledges that the Veteran reported at his initial VA audiology consultation in January 2002 that his hearing loss onset one to two years prior, an actual review of the January 2002 note does not say that. Rather, it acknowledges, "gradual hearing loss left > right ~ 1-2 years." This statement could be interpreted in many ways. He could have been indicating that it had gradually been worsening over the prior two years, or even that the left hearing loss had become worse than the right hearing loss over the prior two years. The Board does not find that this note calls the credibility of the Veteran's reports of the onset of his hearing loss symptoms as having been in service into question. In this case, the Board finds the Veteran's statements about his hearing loss symptoms to be credible and the most competent evidence of record regarding the etiology of his bilateral hearing loss. Thus, the Board finds that the Veteran has been experiencing symptoms of his bilateral hearing loss since active service. Accordingly, service connection is warranted for bilateral hearing loss as it is a current disability for which the symptoms onset during the Veteran's active duty. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Davidoski, 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.