Citation Nr: 21070005 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 16-13 548 DATE: November 22, 2021 ORDER Service connection for bilateral hearing loss is granted. FINDING OF FACT Resolving all doubt in favor of the Appellant, the Veteran was exposed to acoustic trauma during active service and has experienced symptoms of bilateral hearing loss continuously since separation from service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1133, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from June 1973 to June 1976. The Veteran appeared at a hearing before the undersigned Veterans Law Judge (VLJ) of the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) in December 2018. A transcript of the hearing is of record. Unfortunately, the Veteran died in May 2021, during the pendency of the appeal. Accordingly, this matter was dismissed by the Board in May 2021. In June 2021, the Appellant, the Veteran's spouse, was recognized as a substitute claimant for the Veteran in this matter. Most recently, in June 2021, the Board remanded this issue to the VA Regional Office (RO) for additional development. Entitlement to service connection for bilateral hearing loss. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Alternatively, continuity of symptomatology may be established if a claimant can demonstrate: (1) that a condition was "noted" during service; (2) evidence of post-service continuity 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 under 38 C.F.R. § 3.303 (b); Barr v. Nicholson, 21 Vet. App. 303 (2007). Where a claimant asserts entitlement to a chronic condition but there is insufficient evidence of a diagnosis in service, he can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309 (a), including neurological disorders such as hearing loss. Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). Such chronic diseases are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1110, 1112, 1131, 1133; 38 C.F.R. §§ 3.307, 3.309(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a claimant is competent to report on that of which he or she has personal knowledge). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). According to VA standards, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) 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 scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran, in written statements and during his December 2018 Board hearing, asserted that during service he was exposed to noise from training and regular qualification with live weapons, living in barracks on or near an airfield with continuous aircraft noise, working in a small room with key punch machines, and using motorized equipment in ground maintenance. He also asserted that he experienced hearing loss during service as evidenced from his in-service audiograms demonstrating left-ear hearing loss at separation from service when compared to that recorded at entry into service. His service separation form, his DD-214, indicates that his military occupational specialty (MOS) was a card and tape writer, or key punch operator in civilian employment. The Veteran's service personnel records include an undated evaluation demonstrating his duties in ground maintenance. The Veteran is competent to report his in-service noise exposure and there is no evidence that he is not credible in this regard. Layno, 6 Vet. App. 465, 470. The Board thus concedes that the Veteran experienced in-service acoustic trauma in service as a result of his military duties, considering his MOS and duties as recorded and his lay statements describing in-service exposure consistent with his recorded duties. The Veteran's service treatment records are silent for complaint, treatment, or diagnosis of bilateral hearing loss. The Veteran's June 1973 Report of Medical Examination, conducted for the purpose of entry into service, indicates that he demonstrated pure tone thresholds, in decibels, 15, 5, 5, 15, for the right ear, and 15, 10, 5, 15, for the left ear, each measured at 500, 1000, 2000, and 4000 Hz, respectively. His April 1976 Report of Medical Examination, conducted for the purpose of separation from service, indicates that he demonstrated pure tone thresholds, in decibels, of 15, 5, 10, 20, for the right ear, and 5, 5, 5, 25, for the left ear, each measured at 500, 1000, 2000, and 4000 Hz, respectively. The United States Court of Appeals for Veterans Claims (Court) has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran underwent VA audiological examination in October 2016 revealing, in pertinent part, pure tone thresholds, in decibels, of 10, 10, 25, 30, 45, for the right ear, and 35, 10, 40, 65, 70, for the left ear, each measured at 500, 1000, 2000, 3000, and 4000 Hz, respectively. As he demonstrated an auditory threshold in at least one of the specified frequencies of 40 decibels or greater, his impaired hearing is considered a disability under VA standards, bilaterally. 38 C.F.R. § 3.385. While the Veteran and VA examiners have discussed the threshold shift recorded in the Veteran's hearing acuity documented during service over the course of the appeal, it does not appear that any party considered or asked an examiner to consider the lay evidence of record of continuous symptoms of bilateral hearing loss during and since service. Indeed, in an August 2019 statement, the Veteran's spouse, the Appellant in the present appeal, prior to the time during which she was the Appellant, asserted that she was also a service member and that she knew the Veteran, during his service, when he was living in the barracks he had described. She reported that on a daily basis over the years she noticed that his hearing was getting worse. The Appellant is competent to report what she observed of the Veteran's worsening bilateral hearing acuity over the years, beginning in the time he lived in the barracks during service, and there is no evidence that she is not credible in this regard. Layno, 6 Vet. App. 465, 470. As the VA examiners rendered etiological opinions without being asked to consider the lay evidence of record of continuous symptoms of bilateral hearing loss during and since service, the opinions are of little probative value. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Based on the forgoing, there is probative evidence of current bilateral hearing loss that comports with VA standards to be considered a disability under 38 C.F.R. § 3.385, probative evidence of in-service acoustic trauma, and resolving all doubt in favor of the Appellant, probative evidence of continued symptoms of bilateral hearing loss from the time of separation from service to the present. 38 U.S.C. §§ 1110, 1112, 1131, 1133; 38 C.F.R. §§ 3.307, 3.309, 3.385; Walker, 708 F.3d 1331, at 1337-39. The Board thus finds that service connection for bilateral hearing loss is warranted. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Department of Veterans Affairs 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.