Citation Nr: 21076691 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 17-00 483 DATE: December 27, 2021 ORDER Service connection for bilateral hearing loss is granted. FINDINGS OF FACT 1. The Veteran was exposed to loud noise during service given his military occupational specialty (MOS) of automotive repair parts specialist. 2. The Veteran has a current diagnosis of bilateral hearing loss for VA purposes and has presented credible evidence of experiencing hearing loss since his military service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss disability have been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from June 1971 to May 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision. This case was previously before the Board in December 2018 and June 2021, at which times the case was remanded for additional development. Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Certain chronic diseases, including organic diseases of the nervous system such as hearing loss, will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). 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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis The Veteran contends that he experiences bilateral hearing loss which is related to his in-service noise exposure. Initially, the Board notes that the Veteran's MOS was automotive repair parts specialist. Furthermore, service connection is currently in effect for tinnitus based on the Veteran's in-service noise exposure. As such, the Board finds that hazardous noise exposure is consistent with the facts and circumstances of the Veteran's service and concedes that the Veteran sustained acoustic trauma during active service. Service treatment records (STRs) are silent for complaints of, or treatment for bilateral hearing loss disability while the Veteran was in active service. Nonetheless, the Veteran has indicated that he first experienced symptoms associated with hearing loss while he was in active service and that those symptoms have continued since service. Post-service treatment records are negative for hearing loss until approximately February 2013. Significantly, a February 2013 private audiogram (conducted while the Veteran was incarcerated) in graphic form that shows bilateral hearing loss for VA purposes under 38 C.F.R. § 3.385. The Veteran submitted an initial claim for service connection for bilateral hearing loss in March 2013. While the Veteran was originally scheduled for a VA audiological examination in April 2014, he was unable to report due to being incarcerated. As such, pursuant to the December 2018 Board remand, he was scheduled for another VA examination. Pursuant to the December 2018 remand, the Veteran was afforded a VA audiological examination in December 2019. Significantly, while the December 2019 VA examiner found that the Veteran did not have hearing loss of either ear for VA purposes under 38 C.F.R. § 3.385, a review of the audiological findings actually shows hearing loss of the right ear for VA purposes under 38 C.F.R. § 3.385 but not the left ear. Furthermore, the December 2019 VA examiner opined that the Veteran's claimed bilateral hearing loss was less likely than not (less than 50 percent probability or greater) caused by or the result of the Veteran's military service. As rationale for this opinion, the examiner noted that a review of the claims file and service treatment records revealed the Veteran to have normal hearing sensitivity at both the entrance and separation examinations with no significant threshold shifts. The audiogram is the objective standard for noise injury, and because the Veteran's hearing was normal at separation with no significant threshold shifts having occurred during active duty service, there was no evidence the Veteran's military noise exposure caused a permanent noise injury affecting hearing sensitivity. Additionally, the Veteran worked in high noise environments following his military service. In its June 2021 remand, the Board found the December 2019 VA opinion to be inadequate. Initially, the Board noted, that, while the December 2019 VA audiological examination is negative for left ear hearing loss for VA purposes under 38 C.F.R. § 3.385, the February 2013 audiogram (conducted while the Veteran was incarcerated) in graphic form does show bilateral hearing loss for VA purposes under 38 C.F.R. § 3.385. As such, pursuant to Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013), the Board found that the Veteran has been found to have bilateral hearing loss for VA purposes under 38 C.F.R. § 3.385 during the appeal period. The Board also noted that the December 2019 VA examiner relied on the lack of documented threshold shifts between the Veteran's entrance and exit examinations in service to conclude that his current hearing loss was not related to service, failing to consider the holding in Hensley v. Brown, 5 Vet. App. 155, 160 (1993) that service connection may be granted for any injury or disease diagnosed after discharge when the evidence establishes that the Veteran incurred the disease or injury in service. Furthermore, although the December 2019 examiner also noted the Veteran's post-service noise exposure to support her conclusion, she did not reconcile her findings regarding the significance of the Veteran's in-service noise exposure in relation to the positive nexus opinion concerning the Veteran's tinnitus with her findings regarding in-service noise exposure and bilateral hearing loss. Pursuant to the June 2021 Board remand, an addendum opinion was obtained in September 2021. Significantly, the September 2021 VA examiner opined that the Veteran's bilateral hearing loss was less likely as not caused by or the result of noise exposure during service. As rationale, the examiner noted that there is no significant permanent shift in hearing thresholds beyond test variability from entrance to separation, which she stated is objective evidence of no permanent auditory damage on active duty from conceded noise exposure. She also noted that there is no report of complaint or treatment for hearing loss in STRs or at separation. The examiner further found that current research did not support the notion of delayed onset noise-induced hearing loss and tinnitus. Specifically, the examiner cited a 2006 Institute of Medicine's (IOM) report which found no scientific basis on which to conclude that hearing loss that appeared many years after noise exposure could be causally related to that noise exposure if hearing was normal immediately after the exposure. Unfortunately, the Board finds that the September 2021 VA opinion is also inadequate as it does not appear to consider the allegations of continuity of symptomatology in this case. However, the Board declines to remand for yet another medical opinion at this time as it finds the evidence in this case to be in equipoise. In this case, medical evidence shows a current bilateral hearing loss disability for VA compensation purposes pursuant to 38 C.F.R. § 3.385. The evidence also suggests a link between this hearing loss and the Veteran's military service. In this regard, the Veteran alleges military acoustic trauma during and since his service. Significantly, the Veteran is competent to report such symptoms as decreased hearing acuity that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). In addition, based upon the evidence available, the Board presumes the occurrence of the Veteran's in-service acoustic trauma. While the December 2019 and September 2021 VA opinions indicate that the Veteran's bilateral hearing loss is not related to the Veteran's military service, these opinions do not appear to consider the allegations of continuity of symptomatology in this case. The Board finds the Veteran's statement regarding continuity of hearing loss since the Veteran's discharge from military service to be credible. Given the Veteran's presumed in-service acoustic trauma during his military service along with his credible allegations of continuity of symptomatology since that time, the Board finds that there is an approximate balance of positive and negative evidence in this appeal. 38 C.F.R. § 3.303(d). Resolving all remaining doubt in the Veteran's favor, the Board concludes that service connection for bilateral hearing loss is warranted. 38 U.S.C. § 5107(b). APRIL MADDOX Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. Umez-Eronini, 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.