Citation Nr: 21075979 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 19-11 469 DATE: December 22, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, the Board reopens the claim and finds that the evidence of record shows that the Veteran's bilateral hearing loss is at least as likely as not related to in-service noise exposure. CONCLUSION OF LAW The evidence is in relative equipoise as to whether the Veteran's bilateral hearing loss is related to active service. 38 U.S.C. §§ 1110, 1111, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2004 to May 2005. In December 2019, the Veteran testified before the undersigned at a virtual board hearing held in the Winston-Salem Regional Office. The transcript from the hearing has not yet been associated with the file, as the case is being granted under the Board's "One Touch" program. The hearing transcript will still be processed and associated with the claims file in the ordinary course of business. Service Connection Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection, generally, there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet. App. 341, 346 (1999). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (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." Barr, supra, at 307; see also Davidson v. Shinseki, 581 F.3d 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). However, the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309 (a), such as organic diseases of the nervous system to include sensorineural hearing loss and tinnitus. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107 (b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Entitlement to service connection for bilateral hearing loss The Veteran contends that his current bilateral hearing loss is etiologically related to in-service noise exposure. More specifically, the Veteran has alleged that he had several improvised explosive device (IED) involvements, performed duties as a convoy escort gunner while deployed. The threshold for normal hearing is from zero to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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, 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. The Court has held that service connection can be granted for hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service. Hensley, supra, at 159. Initially, the Board notes that the Veteran has been diagnosed with bilateral hearing loss. See October 2019 VA examination. Additionally, exposure to loud noise during service is conceded based on the Veteran's military occupation specialty of motor transport operator. See VA Form DD214. With evidence of a current disability and a conceded in-service event or injury, the remaining element required to establish service connection is a nexus between the current disability and the in-service event or injury. The Veteran has undergone a battery of VA and private audiological examinations related to this claim over the years. This issue was previously before the Board in July 2017 when the Veteran's claim of entitlement to service connection for bilateral hearing loss was denied. The RO subsequently reopened the claim finding that the Veteran submitted new and material evidence sufficient to reopen the claim. See March 2019 Statement of the Case (SOC). The Board reopens the claim as well. The Veteran's service treatment records also show that the Veteran earned a Combat Action Badge and Army Commendation Medal with "V" device for enemy attacks during the Veteran's service in Iraq from March 2004 to March 2005. Therefore, the RO also conceded that the Veteran was exposure to combat noise such as explosive devices and gunfire. See March 2019 SOC. In connection with his request to reopen his claim, the Veteran submitted a hearing test from a private audiologist dated October 2017. The audiologist confirmed the Veteran's diagnosis of bilateral sensorineural hearing loss and opined that it was at least as likely as not that the current bilateral hearing loss is due to military noise exposure. The examiner based this opinion on the Veteran's combat awards showing your involvement in an enemy insurgent attack as well as a statement from your former sergeant, who indicated the Veteran served as a saw gunner on a Humvee while deployed in Iraq. The Veteran was subsequently afforded another VA audiological examination in June 2018. The examiner opined your hearing loss is less likely than not due to military noise exposure. The examiner found that although the Veteran had a high probability of noise exposure including guns and explosive devices during military service, the examiner stated hearing tests from 2003 and 2005 showed normal hearing with no permanent, significant threshold shifts while on active duty. As such, the examiner stated there is no objective evidence to support a military-related noise injury. Moreover, the Veteran is competent and credible to report the symptoms of his hearing loss. See Layno v. Brown, 6 Vet. App. 465, 469. Here, the Board finds that the Veteran has consistently and credibly asserted that he first began experiencing hearing loss during service. Therefore, the Board finds the Veteran's statements concerning experiencing hearing loss since his in-service noise exposure to be competent and credible evidence of continuity of symptomology for service connection purposes. In light of the above, the Board finds the evidence is at least in equipoise. Resolving all reasonable doubt in the Veteran's favor, service connection for bilateral hearing loss is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Woehlke 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.