Citation Nr: 21071489 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 15-15 218 DATE: November 30, 2021 ORDER The issue of entitlement to service connection for a bilateral hearing loss (BHL) disability is granted. FINDINGS OF FACT 1. The BHL disability did not clearly and unmistakably pre-exist service. 2. Resolving reasonable doubt in the Veteran's favor, his BHL disability is at least as likely as not related to noise exposure in service. CONCLUSION OF LAW The criteria for service connection for a BHL disability are met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1976 to July 1992. In October 2017, the Veteran and his spouse testified under oath at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In June 2021, the Board remanded the appeal for additional development. Following the June 2021 Board remand, the issue of entitlement to service connection for posttraumatic stress disorder (PTSD) was granted. See Rating decision, August 2021. This constitutes a complete grant of the benefit sought, and this issue is no longer before the Board. Entitlement to service connection for a BHL disability. The Board finds that the Veteran meets the criteria for entitlement to service connection for a BHL disability. The first criterion is met as the Veteran has a diagnosed disability. See VA examination, July 2021. In addition, the second criterion is met as the Veteran experienced in-service noise exposure. The July 2021 VA examination report states that the Veteran "reported noise exposure from field artillery at [F.R.] KS and from working at an air field [sic] stating that hearing protection was not worn." The Board also notes that the Veteran has been awarded service connection for tinnitus as a result of military noise exposure. See Rating decision, June 2020. Therefore, in-service noise exposure is conceded. Before turning to the third criterion, the Board acknowledges that a BHL disability was reported in the July 1976 audiometer enlistment evaluation. See STR, July 1976. However, the PULHES score for hearing ("H") was 1. Id. Pursuant to 38 C.F.R. § 3.304 (b): The veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. In prior development, the Board sought an opinion to address whether BHL clearly and unmistakably pre-existed service. See Board remands, June 2018, and June 2021. A VA opinion was obtained in July 2021 that addresses the prompt: "Please opine as to whether it is at least as likely as not that the disability(ies) clearly and unmistakably pre-existed service." In response, the examiner states: "It is less likely than not that the hearing loss pre-existed service." In support, the following rationale is provided: The 1976 enlistment physical indicated a mild to moderate hearing loss at 500 - 4000 Hz. However, the 1978 audiogram documented hearing within normal limits at 500 - 6000 Hz; suggesting that the hearing loss noted at the time of enlistment was temporary. The 1992 ETS physical also documented hearing within normal limits with no significant worsening of thresholds compared to the 1978 audiogram. In addition, the 1996 National Guard physical documented hearing within normal limits with no significant worsening of thresholds compared to the 1978 audiogram. The Board notes that audiometer evaluations from May 1981, September 1985, December 1986, and August 1991 also do not show a BHL disability. See STRs, May 1981, September 1985, December 1986, August 1991. The Board is aware that in a separate portion of the July 2021 VA examination report, the examiner indicated "Yes" in response to the question: "Did hearing loss exist prior to the service?" However, the Board notes that this question does not address whether it "clearly and unmistakably" existed prior to service. In addition, no rationale is provided in support of this separate finding. Accordingly, the Board affords greater probative weight to the first opinion addressed above, particularly as the Board's own review of the service treatment records shows multiple audiometer evaluations in service that did not note a disability. Therefore, resolving reasonable doubt in favor of the Veteran, the Board finds that the hearing loss, to the extent that it was noted at entry, was temporary, and the competent and credible evidence of record supports a finding that a BHL disability did not clearly and unmistakably exist prior to service. Having found that the Veteran did not have a disability at entry to service, the Board now turns to the third criterion of service connection. In addition to the above, the July 2021 VA examination report provides a separate opinion and rational that address the finding that "[i]t is less likely than not that the current hearing loss was caused by the Veteran's active duty service." However, the rationale provided for this particular opinion is inadequate because it relies, at least in part, on the fact that there was no hearing loss at separation. Indeed, the opinion states: "If the current hearing loss were associated with Veteran's military noise exposure, it would be expected that the separation physical would have shown an elevation in hearing thresholds, which it did not." However, the fact that there was no hearing loss at separation is not dispositive of the issue, and an opinion based on this fact is inadequate. See Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993). As discussed above, the Veteran's in-service noise exposure is conceded. Regarding post-service noise exposure, the July 2021 VA examination report indicates that while the Veteran reported both occupational and leisure noise exposure, from lawn mowers and weed eaters, as well as lawn equipment, respectively, hearing protection was worn. Finally, the Board acknowledges the August 2012 VA examination and the September 2012 VA opinion, as well as the July 2019 VA examination and the July 2020 VA addendum opinion. However, these examinations and opinions were addressed by the Board in the June 2018 and June 2021 remands, respectively, at which times it was determined that new VA examinations and opinions were needed. Accordingly, given the above, the Board is left with a record that shows a diagnosed disability that cannot be conclusively disassociated from the in-service noise exposure. Therefore, the Board resolves reasonable doubt in the Veteran's favor and finds that the third criterion of service connection has been met. As the Veteran has met all three criteria, a grant for service connection is warranted. The issue of entitlement to service connection for a BHL disability is granted. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Foster, 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.