Citation Nr: 21070008 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 17-44 681 DATE: November 22, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT The preponderance of the evidence supports that the Veteran's bilateral hearing loss is etiologically linked to his active-duty service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. § 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from April 1991 to April 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2017 rating decision of the Agency of Original Jurisdiction (AOJ). This case was previously before the Board in March 2019. The Board denied entitlement to service connection for bilateral hearing loss. The Veteran timely appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In September 2020, pursuant to a Joint Motion for Remand (JMR), the Court vacated the Board's March 2019 decision. Pursuant to the JMR, the Board remanded the claim to the AOJ in February 2021 for additional development to include obtaining an adequate medical opinion as to the etiology of the Veteran's hearing loss. The matter has now been returned to the Board for further appellate action. Entitlement to service connection for bilateral hearing loss Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish entitlement to service-connected compensation benefits, a veteran must show: "(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, 1166-67 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be 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 frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. Thresholds for normal hearing are between 0 and 20 decibels, and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Turning to the evidence of record, the Veteran has been diagnosed with bilateral sensorineural hearing loss most recently in January 2017 by a board-certified VA audiologist. The Veteran received a VA audiological examination in January 2017. The examination revealed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 60db 55db 70db 70db 70db LEFT 60db 65db 70db 75db 75db Speech recognition was 84 percent in the right ear and 76 percent in the left ear. These results indicated that the Veteran's hearing impairment reached the level of a disability. See 38 C.F.R. § § 3.385. The Board acknowledges that the April 2021 and October 2021 VA examiner found the January 2017 VA examination results were invalid because the speech recognition scores were out of agreement with the pure tone averages. The Board also acknowledges that the Veteran's medical record does not contain a diagnosis of bilateral hearing loss. Further, hearing loss has consistently been denied on review of systems. Nevertheless, the January 2017 VA examiner found the audiometric results were reliable and valid for rating purposes. Additionally, the Board found evidence of a current hearing disability in its March 2019 decision. As there is evidence to support the Board's prior finding, it cannot be disturbed. Similarly, acoustic trauma has been conceded, and, accordingly, the remaining issue is a nexus. The Veteran has competently and credibly reported constant and increasing hearing loss since service. The Veteran's service treatment records (STRs) reveal a 20-decibel threshold shift in the Veteran's left ear at 4000 Hz between enlistment and separation. The Board previously found the VA opinion associated with the file in January 2017 inadequate. The Veteran underwent a second VA examination in April 2021. The April 2021 VA examiner would not provide an opinion as to the etiology of the Veteran's hearing loss because should found no evidence of a current disability. In October 2021, a VA examiner provided a negative medical opinion. The examiner acknowledged the Veteran's reports of hearing loss during service and noted that the significant threshold shift noted at separation indicated auditory damage during service. However, the examiner found the Veteran's hearing was within normal limits at enlistment and at separation and there was no valid diagnosis of hearing loss. Notably, the laws and regulations do not require in-service complaints of or treatment for hearing loss in order to establish service connection, nor does normal hearing shown on audiometric testing at separation bar service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Considering the above, the Board finds that service connection is warranted. While there is no positive opinion of record linking the Veteran's hearing loss to his active service, the Veteran has indicated, in sum, that he has been suffering from symptoms of hearing loss starting in service and continuing to the present day. In weighing the Veteran's statements, the Board notes that he is competent to assert the presence of symptoms subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board also finds the Veteran's statements are supported by the medical evidence revealing a significant threshold shift during service. Given the Veteran's credible statements of continuing symptoms and the lack of an adequate negative nexus opinion, the Board finds that service connection for bilateral hearing loss is warranted. See 38 C.F.R. § 3.303 (a) (service connection must be considered on the basis of the places, types, and circumstances of his service as shown by his service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence). Accordingly, the appeal for service connection for bilateral hearing loss is granted. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Sherman 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.