Citation Nr: 21076884 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 18-10 319 DATE: December 28, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT The Veteran's bilateral hearing loss is related to his active duty military service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from December 1972 to November 1974. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, the Veteran testified at a travel board hearing held before the undersigned Veterans Law Judge (VLJ). During the hearing, the VLJ granted the Veteran's request to hold the record open for 60 additional days for the submission of additional evidence. Entitlement to service connection for bilateral hearing loss. The Veteran is seeking service connection for bilateral hearing loss. The Board finds that service connection is warranted. 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 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, 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). Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified puretone and speech recognition criteria. Audiometric testing measures puretone threshold hearing levels (in decibels) over a range of frequencies (in Hertz). See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The determination of whether a Veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. 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, or 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. A disorder diagnosed after discharge may be service connected if all the evidence establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, to include hearing loss (organic disease of the nervous system), may be service-connected on a presumptive basis if manifested to a compensable degree within a specified period of time following separation (one year for organic disease of the nervous system). 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent cause. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Furthermore, it is the responsibility of the Board to assess the credibility and weight to be given to the evidence. Hayes v. Brown, 5 Vet. App. 60 (1993). The Veteran contends that his hearing was damaged when he was exposed to the loud noise of gunfire while he was a policeman in the military. The Veteran contends that this led to his hearing loss. See June 2017 VA Form 21-626EZ, Fully Developed Claim (Compensation) and August 2021 Hearing Transcript. Service treatment records are silent for any signs, symptoms, complaints of, or treatment for hearing loss. The Veteran's October 1974 Report of Medical Examination for separation showed that the physician evaluated the Veteran's ears as normal. The Veteran's DD 214 shows that his military occupational was a military policeman, which was the civilian equivalent to a guard or watchman. While the Veteran's service treatment records do not show treatment for or complaints of bilateral hearing loss and tinnitus, the Veteran is competent to describe his in-service noise exposure, and such exposure is consistent with the circumstances of his service. 38 U.S.C. § 1154(a). Thus, the Board concedes in-service loud noise exposure. A July 2017 VA examination for hearing loss and tinnitus shows that the Veteran was diagnosed with bilateral hearing loss for VA purposes. The VA examiner diagnosed the Veteran with bilateral sensorineural hearing loss. On this examination, the VA examiner opined that it was not at least as likely as not that the Veteran's right and left ear hearing were caused by a result of the Veteran's military service. The examiner explained that there was no threshold shift when comparing entrance to separation examination thresholds. The Veteran's hearing was within normal limits at the separation examination. In October 2021, the Veteran submitted a private medical opinion from audiologist C.A.F. The private audiologist performed an audiological evaluation on the Veteran in September 2021. The private audiologist noted that he had an opportunity to review some of the Veteran's service and military records. While serving in the military during the 1970's, the Veteran reported being exposed to the noise of rifles and pistols. Since that time, he had not been exposed to any significant amount of noise. The audiologist diagnosed the Veteran with bilateral tinnitus and bilateral sensorineural hearing loss. He opined that it was more likely than not that the exposure the Veteran suffered during his military service was the beginning of his hearing loss and tinnitus. The noise that the Veteran was exposed to during his service in the military was loud enough to cause hearing loss and tinnitus. The type and degree of his hearing loss was consistent with noise induced hearing loss. The July 2017 negative VA medical opinion is inadequate because the VA examiner did not take into consideration the Veteran's lay statements that he had exposure to the loud noise of gunfire while he worked as a military policeman in service. Thus, the July 2017 negative opinion does not provide any probative weight against the Veteran's claim. However, the positive private medical opinion of record rendered by audiologist C.A.F. is adequate and probative in value. The private audiologist reviewed the Veteran's service medical records and considered the Veteran's lay statements. Further, the audiologist provided a sufficient rationale for his medical opinion. Thus, this positive medical opinion weighs in favor of the Veteran's claim. Considering all evidence of record, the Board finds that the Veteran's bilateral hearing loss is related to his military service. When resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for bilateral hearing loss is warranted. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Crawford, 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.