Citation Nr: 21071243 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 17-36 179 DATE: November 30, 2021 ORDER Service connection for bilateral hearing loss is granted. FINDING OF FACT Resolving all doubt in the Veteran's favor, the record shows that the Veteran's bilateral hearing loss is related to service. CONCLUSION OF LAW The criteria to establish service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from February 1971 to February 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. This case was previously before the Board in February 2020 and remanded for additional development. Service Connection In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 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. See 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. See Alemany v. Brown, 9 Vet. App. 518 (1996). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. See 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Bilateral Hearing Loss The Veteran reports that he is entitled to service connection for bilateral hearing loss. In support, the Veteran reports diminished hearing during and since service, which he attributes to hazardous noise exposure during military service. The Veteran reported that he was exposed to acoustic trauma during service and minimal noise exposure after service. Indeed, VA conceded hazardous noise exposure in service. VA may only find hearing loss to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies of 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. See 38 C.F.R. § 3.385. In February 2020 the Board remanded the issue of entitlement to service connection for bilateral hearing loss. Subsequently, on October 2020 the Veteran was provided a VA examination. The October 2020 VA examination shows the left ear with 96 percent speech discrimination. Decibel (dB)loss at the puretone threshold of 500 Hertz (Hz) is 35, with a 45 dB loss at 1000 Hz, a 40 dB loss at 2000 Hz, a 45 dB loss at 3000 Hz, and a 50 dB loss at 4000 Hz. The right ear with 92 percent speech discrimination. Decibel (dB)loss at the puretone threshold of 500 Hertz (Hz) is 35, with a 40 dB loss at 1000 Hz, a 40 dB loss at 2000 Hz, a 45 dB loss at 3000 Hz, and a 45 dB loss at 4000 Hz. See VA medical examination (October 2020). Additionally, the Veteran was diagnosed with bilateral hearing loss, which meets the criteria for VA hearing loss as a disability. Id; and see also 38 C.F.R. § 3.385. Thus, the Veteran has bilateral hearing loss for VA compensation purposes and thus establishes the first element for service connection. The Board acknowledges that the October 2020 VA examiner noted that the Veteran's bilateral hearing loss was less likely than not caused or aggravated by service. See VA medical examination (October 2020). However, the medical and lay evidence, shows that the Veteran was exposed to acoustic trauma in service and a hearing disability has been present ever since. Further, the record shows that VA conceded such exposure in service. The Board finds that the medical and lay evidence linking the Veteran's bilateral hearing loss disability to service is probative, competent and credible. Indeed, the Veteran's medical record shows back problems in service and thereafter. The evidence shows that the Veteran's back disability is related to service, thus, service connection is warranted. See Flynn v. Brown, 6 Vet. App. 500, 503 (1994) (noting that "the element of cause and effect has been totally by-passed in favor of a simple temporal relationship between the incurrence of the disability and the period of active duty"); see also 38 C.F.R. § 3.303(a) (Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces). (Continued on the next page) In light of the forgoing, the Board finds that the medical and lay evidence shows that the Veteran's bilateral hearing loss condition had its onset in service and have been recurrent since that time. As such, resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's bilateral hearing loss had its onset during his military service. As such, service connection is warranted. See 38 C.F.R. § 3.303(a). STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Alvarado- 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.