Citation Nr: 21067650 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 16-14 798 DATE: November 4, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT The evidence is in equipoise as to whether the Veteran's currently diagnosed bilateral hearing loss was incurred in service. CONCLUSION OF LAW Resolving all doubt in the Veteran's favor, the criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty from October 1979 to October 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). As a preliminary matter, the Board notes that this claim was previously before the Board in May 2019 as well as June 2021, both times it was remanded to the Agency of Original Jurisdiction (AOJ) for further evidentiary development. In consideration of this appeal, the Board is satisfied that there has been substantial compliance with its June 2021 remand directives, and as such, will proceed with appellate review. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for bilateral hearing loss is granted. The Veteran asserts that she has a current bilateral hearing loss disability as a result of in-service noise exposure, and as such, is entitled to service connection for this condition. Service connection is warranted where the evidence of record establishes that an injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) 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); 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after the military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during active military service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. Specific to claims for service connection, hearing loss is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; the threshold for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Service treatment records (STRs) show that the Veteran had hearing within normal limits at entrance and upon separation from active-duty service. Service personnel records confirm that the Veteran's military occupational specialty (MOS) was a telecommunications operator specialist. See Certificate of Release or Discharge from Active Duty (DD 214). The Veteran was first afforded a VA audiological examination in connection with her present compensation claim in April 2015. This examination revealed the following puretone thresholds, in decibels: at 500, 1000, 2000, 3000, and 4000 Hertz of 20, 10, 15, 20, and 20 in the right ear; and of 20, 15, 15, 25, and 25 in the left ear. Speech recognition scores using the Maryland CNC test was 98 percent for the right ear and 100 percent for the left ear. Notably, the April 2015 puretone thresholds do not meet the criteria for right or left ear hearing loss disability under VA regulations. The Veteran was afforded a second VA audiological examination in November 2019. This examination revealed the following puretone thresholds, in decibels: at 500, 1000, 2000, 3000, and 4000 Hertz of 45, 45, 45, 45, and 40 in the right ear; and of 45, 40, 45, 40, and 40 in the left ear. Speech recognition scores using the Maryland CNC test was 80 percent for the right ear and 72 percent for the left ear. These findings meet the criteria for a bilateral hearing loss disability in accordance with VA regulations. See 38 C.F.R. § 3.385. The VA examiner also provided an opinion regarding etiology of the Veteran's bilateral hearing loss. The VA examiner opined that the Veteran's bilateral hearing loss is not at least as likely as not caused by or a result of military service. The VA examiner reasoned that "[t]he Veteran served in the TNANG from 1979 to 1983. All the Veteran's in-service audiograms indicated normal hearing sensitivity. The Veteran was tested at this VAMC in November 2014 and denied hearing loss at her audiology consult. The Veteran is currently service connected for subjective tinnitus. The Veteran had a VA examination in April 2015 at which time it was opined that the Veteran's bilateral hearing loss was less likely than not caused by in-service events. This opinion is agreed with by this examiner." The Veteran also submitted a private medical opinion from Dr. M. F. in July 2017. With respect to the Veteran's bilateral hearing loss, Dr. M. F. stated that "[the Veteran] is a patient in the audiology section. I did not evaluate her upon discharge from service, however, [the Veteran] reports a history of noise exposure from her assignment in the military. As with many of our patients, these exposures were as likely as not a major contributor to a patient's hearing-related complaints, including her bothersome tinnitus. Although she may not have reported all of these difficulties upon discharge, it is clear that her service-related exposures and experiences have produced enduring physical problems that influence her ability to communicate and function as she once did, and it is at least as likely as not that the hearing problems experienced by this patient today are the result of noise exposure during the time she was in active service." The November 2019 VA audiological examination contains objective findings that demonstrate a bilateral hearing loss disability in accordance with the requirements of 38 C.F.R. § 3.385. As such, the first element of service connection has been met. The Board finds that the Veteran's testimony regarding her hazardous noise exposure, i.e., that she was exposed to helicopter and jet noises living in the barracks at the end of the runway on the Air Force Base, as well as the loud din and humming from the operation of the tele-type and crypto-machines in her MOS as a telecommunications operator specialist (see e.g., January 2020 correspondence), are consistent with the circumstances of his service. As such, an in-service event, specifically, hazardous noise exposure resulting in acoustic trauma, has also been met. Having established a current disability and in-service noise exposure, the question for consideration is whether the Veteran's bilateral hearing loss is related to such in-service noise exposure. In this case, the record contains both negative and positive nexus opinions. The November 2019 VA opinion provided adequate rationale, indicating that because the Veteran's hearing was normal at separation, her hearing loss is not related to her active military service. The private opinion, on the other hand, is also probative as to the issue of nexus. Further, in addition to the private medical opinion, the medical records and the statements of the Veteran provide a plausible basis to conclude that the Veteran's current bilateral hearing loss is related to his military service. Moreover, the absence of in-service evidence of hearing loss disability is not fatal to a claim for service connection for hearing loss disability. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing disability (i.e., one meeting the requirements of section 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. See Hensley v. Brown, 5 Vet. App. 155 (1993). Taken as a whole, the probative evidence of record is in equipoise as to whether the Veteran's hearing loss is related to her active-duty military service. As such, the benefit of the doubt is resolved in the Veteran's favor. The claim for service connection for bilateral hearing loss is granted. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. M. Lowman, 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.