Citation Nr: 21068922 Decision Date: 11/16/21 Archive Date: 11/15/21 DOCKET NO. 18-05 034 DATE: November 16, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT 1. The record evidence shows that the Veteran's military occupational specialty (MOS) was wheeled vehicle repairer and he was awarded the sharpshooter qualification bade, grenade qualification bade, and mechanic badge; thus, his in-service exposure to significant acoustic trauma is presumed. 2. The record evidence shows that the Veteran currently experiences bilateral hearing loss and wears bilateral hearing aids. 3. Resolving any reasonable doubt in the Veteran's favor, the record evidence supports finding that his bilateral hearing loss is related to active service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from September 1992 to April 1996 in the U.S. Army. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a February 2017 rating decision which denied the currently appealed claim. A videoconference Board hearing was held in March 2020 before a Veterans Law Judge and a copy of the hearing transcript has been added to the record. The Veterans Law Judge who held this hearing subsequently retired from the Board. In June 2020, the Board denied, in pertinent part, the currently appealed claim. Both the Veteran, through an attorney, and VA's Office of General Counsel appealed this decision to the United States Court of Appeals for Veterans Claims (Court) by filing a Joint Motion for Partial Remand (Joint Motion). Both parties to the Joint Motion requested that the Court vacate and remand only that part of the Board's June 2020 decision which denied the currently appealed claim. The Court granted the Joint Motion in March 2021. Both parties to the Joint Motion invited the Board to analyze on remand the probative value of an Institute of Medicine (IOM) study which formed part of the rationale for the negative medical nexus opinion dated in January 2017 concerning the etiology of the Veteran's bilateral hearing loss. Because the Board is granting service connection for bilateral hearing loss in this decision, it declines the invitation contained in the Joint Motion to analyze the probative value of the IOM study. Entitlement to service connection for bilateral hearing loss The Board finds that the evidence reasonably supports granting the Veteran's claim of service connection for bilateral hearing loss. He essentially contends that he incurred bilateral hearing loss during active service as a result of in-service exposure to significant acoustic trauma while working as a vehicle mechanic. The record evidence supports his assertions regarding in-service exposure to significant acoustic trauma and the presence of current disability due to bilateral hearing loss. And, after resolving any reasonable doubt in the Veteran's favor, the record evidence also supports finding that his current bilateral hearing loss is related to active service. For example, the Veteran's DD Form 214 shows that his MOS was wheel vehicle repairer, and he was awarded the sharpshooter qualification badge, the grenade qualification badge, and the mechanic badge. Thus, the Board concedes that the Veteran likely was exposed to significant in-service acoustic trauma. His available service treatment records show that, at his pre-enlistment physical examination in March 1992, prior to his entry on to active service in September 1992, the pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 0 5 LEFT 10 0 5 10 10 On the authorized audiological evaluation in March 1993, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 5 10 15 15 LEFT 20 0 5 10 10 The in-service audiologist stated that the Veteran routinely was exposed to hazardous noise. He used triple flange ear protection and ear plugs. On the authorized audiological evaluation in June 1994, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 10 10 15 LEFT 15 10 20 25 30 The Board notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). The post-service evidence also reasonably supports granting service connection for bilateral hearing loss. It shows that the Veteran currently experiences disability due to bilateral hearing loss which is related to active service. For example, on VA audiology examination in September 1996, the Veteran's complaints included hearing loss which began on active service "and is believed to be the result of exposure to high levels of equipment noise." His pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 0 10 5 LEFT 5 0 5 5 5 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 96 percent in the left ear. The VA examiner stated that the Veteran's hearing was within normal limits bilaterally. On VA hearing loss and tinnitus Disability Benefits Questionnaire (DBQ) in January 2017, the Veteran's pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 15 55 50 LEFT 10 15 15 60 50 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 94 percent in the left ear. The VA examiner reviewed the Veteran's electronic claims file, including service treatment records and post-service VA treatment records. The VA examiner opined that it was less likely than not that the Veteran's bilateral hearing loss is related to active service. The rationale for this opinion was based on a review of the claims file which "showed no hearing loss or significant changes in hearing thresholds greater than normal measurement variability during active duty military service. There was no record of complaint or treatment of the claimed hearing loss in service records." The rationale also was based on the IOM study which "concluded that based on their current understanding of auditory physiology a prolonged delay in the onset of noise-induced hearing loss was 'unlikely.'" The rationale further was that there was "no evidence on which to conclude that the Veteran's current hearing loss was caused by or a result of the Veteran's military service, including noise exposure." The diagnosis was bilateral sensorineural hearing loss. The Board finds that the January 2017 VA examiner's medical nexus opinion is not probative on the issue of whether the Veteran's bilateral hearing loss is related to active service. As noted in the Introduction, both parties to the Joint Motion questioned the probative value of the January 2017 VA examiner's reliance on the IOM study as support for the negative medical nexus opinion provided at that examination. They successfully argued to the Court that the IOM study was too equivocal on the issue of delayed onset hearing loss as a result of in-service noise exposure to be sufficient rationale for a medical nexus opinion. The Board is bound by the Court's Order granting the Joint Motion so it is bound by the argument that the IOM study is insufficient rationale for a medical nexus opinion. The Board finds that the remaining rationale provided for this opinion also is insufficient for VA adjudication purposes. The January 2017 VA examiner relied on the absence of evidence in the Veteran's available service treatment records showing "hearing loss or significant changes in hearing thresholds greater than normal measurement variability during active duty military service" and no in-service complaints of hearing loss as support for the negative medical nexus opinion. This examiner also relied on the fact that there was "no evidence" supporting an etiological link between the Veteran's bilateral hearing loss and active service as support for the negative medical nexus opinion. As noted elsewhere, the lack of contemporaneous records, alone, is not fatal to a service connection claim. See Buchanan, 451 F.3d at 1337, and Barr, 21 Vet. App. at 303. The Veteran has asserted consistently in lay statements that he incurred bilateral hearing loss during active service, including as due to in-service exposure to significant acoustic trauma while working as a U.S. Army vehicle mechanic. The Board has conceded the Veteran's in-service exposure to significant acoustic trauma. He has asserted consistently that his bilateral hearing loss is related to this exposure. He was diagnosed as having bilateral hearing loss following VA examination in January 2017. His voluminous post-service VA outpatient treatment records document ongoing complaints of and treatment for bilateral hearing loss, including the wearing of bilateral hearing aids. In summary, and after resolving any reasonable doubt in the Veteran's favor, the Board finds that service connection for bilateral hearing loss is warranted. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael T. Osborne, 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.