Citation Nr: 21073743 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 16-10 018 DATE: December 10, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT The evidence is in relative equipoise as to whether the Veteran's bilateral hearing loss is causally or etiologically related to in-service noise exposure. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 5017; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1972 to July 1974. In a statement in October 2021 the Veteran indicated that he was not pursuing some concerns, however he did not state that he was withdrawing his claim. The regulations provide that in order for an appeal to be withdrawn there must be a statement that the appeal is withdrawn. 38 C.F.R. § 20.204(b) (redesignated as 38 C.F.R. § 19.55(b). Furthermore the Veteran's representative subsequently submitted a brief clearly showing that the Veteran was pursuing his appeal of entitlement to service connection for bilateral hearing loss. Thus the Veteran's claim of entitlement to service connection for bilateral hearing loss remains in appellate status. 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 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after service 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). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for organic diseases of the nervous system if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309(a). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptoms since service for diseases identified as "chronic" in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Sensorineural hearing loss (organic disease of the nervous system) is a chronic disease listed under 38 C.F.R. § 3.309(a). Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; where the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when the Maryland CNC speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. The Veteran asserts that his bilateral hearing loss had its onset in service as a result of exposure to acoustic trauma during basic training. Specifically, the Veteran states that he was exposed to loud noise from hand grenades and M60s during his eight weeks of basic training. In a brief in April 2019 the Veteran's representative stated that the Veteran had acoustic trauma during service as a meat cutter without adequate hearing protection. In support of his claim, the Veteran testified at his October 2019 Board hearing that the hearing protection during basic training was inadequate and he often had to use his hands to cover his ears in addition to the ear plugs he was provided. The Veteran testified that he started to experience symptoms of hearing loss during service after going to the range and being exposed to noise. The Veteran stated that after service he worked in a car plant for Ford Motor Company and 35 years afterwards for a parks department. He stated that while he had post-service occupational noise exposure he was given hearing protection. Copies of the March 1974 separation examination are unclear as to whether the Veteran had hearing loss as one copy shows 5 decibels at 500 Hertz in both ears and another copy shows 50 decibels at 500 Hertz in both ears. After service, the evidence shows that the Veteran met the criteria for bilateral hearing loss as he had 40 decibels at 2000 Hertz in both ears with a diagnosis of sensorineural bilateral hearing loss on the January 2015 VA audiological examination. As summarized above, the Veteran contends that he has had bilateral hearing loss since service. In addition to the evidence discussed above, his DD 214 Form shows that his military occupational specialty was in meat cutting and he received a M-16 Rifle badge. The Veteran's contentions are credible and consistent with the circumstances of his service. The Board has no reason to doubt the credibility of the Veteran's contentions. Hence, there is probative evidence with regard to a nexus on the basis of continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b), as the Veteran has a diagnosis of bilateral sensorineural hearing loss and he is competent to report that he has experienced symptoms of bilateral hearing loss since service. The Board recognizes that there are unfavorable VA opinions of record. To the extent that the Board in the December 2019 remand found the January 2015 VA opinion to be inadequate and in the May 2021 remand found the March 2020 VA opinion to be inadequate, these opinions need not be further addressed. In a June 2021 VA opinion, the examiner opined that it is less likely than not that the Veteran's hearing loss was incurred in or caused by service. The examiner explained that there was no significant permanent shift in hearing thresholds beyond test variability from entrance to separation and service treatment records, including at separation, do not show complaints or treatment for decreased hearing acuity. The examiner stated that the 2006 IOM study indicates that there are no studies on humans indicating delayed onset hearing loss from noise exposure. Studies done on rats suggest that damage to inner ear structure at the time of noise exposure may lead to later onset of hearing loss. The examiner pointed out that medical literature also shows that generalizing findings from rodent studies to humans is fraught with difficulties and at best should be undertaken with great caution. The examiner noted that the Veteran did not seek support for hearing loss within one year from separation from service. The June 2021 VA examiner pointed out that hearing loss is multifactorial and that the Veteran had occupational noise exposure after service. However, the examiner acknowledged that the Veteran was given hearing protection at work and essentially based the unfavorable opinion on the determination that there was no hearing loss in service. Thus, the VA examiner's opinion in June 2021 is of limited probative value as it is essentially based on the absence of hearing loss in service and the absence of a hearing loss disability in service is not in and of itself fatal to a claim for service connection for hearing loss. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Thus, in viewing the evidence in the light most favorable to the Veteran, the Board finds that the evidence is in relative equipoise (evidence for and against the Veteran's claim is essentially equal), the benefit-of-the-doubt rule applies and the claim of entitlement to service connection for bilateral hearing loss is granted. 38 U.S.C. § 5107(b). Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Mac, 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.