Citation Nr: 21008831 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 17-08 969 DATE: February 18, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, his bilateral hearing loss is related to noise exposure during active duty service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1963 to May 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded the case in March 2019 and October 2020 for additional development. The requested development has been completed to the extent possible, and no further action is necessary to comply with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for bilateral hearing loss is granted. A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a claimant’s period of active military service in order for service connection to be granted. The regulation does not necessarily preclude service connection for hearing loss that first met the regulation’s requirements after service. Hensley v. Brown, 5 Vet. App. 155 (1993). Thus, a claimant who seeks to establish service connection for a current hearing disability must show, as is required in a claim for service connection for any disability, that a current disability is the result of an injury or disease incurred in service, the determination of which depends on a review of all the evidence of record, including that pertinent to service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304; Hensley, 5 Vet. App. at 159-60. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. After a review of the entire evidentiary record and in light of the applicable legal criteria, the Board affords the Veteran reasonable doubt and grants service connection for bilateral hearing loss. With regard to a present disability, a November 2014 VA examination indicates that the Veteran has a diagnosis of bilateral hearing loss for VA purposes. As the Veteran has a current diagnosis, the first element of service connection is met. With regard to an in-service injury, the Veteran’s military occupational specialty (MOS) was military police, which carries with it a moderate probability of exposure to hazardous noise. The Veteran asserts he was exposed to loud noise during service, to include gun fire and heavy machinery. A veteran is competent to report that which he perceives through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Further, a November 2019 VA examiner indicated that the Veteran suffered from tinnitus that was at least as likely as not related to his exposure to noise during service. As such, the Board finds that the Veteran was exposed to hazardous noise during service and the second element of service connection is met. As for the third element of service connection, evidence of a nexus between the Veteran’s bilateral hearing loss and service, the Board notes the evidence of record consists of credible statements from the Veteran and negative medical opinions regarding the etiology of the Veteran’s hearing loss. In a November 2014 VA examination, a VA examiner explained that the Veteran’s discharge hearing examination indicated hearing within normal limits and the Veteran had exposure to noise following service. Therefore, the examiner did not believe the Veteran’s hearing loss was related to service. In March 2019, the Board determined that the November 2014 VA examination was inadequate, as the examiner failed to consider the concept of delayed onset hearing loss or address the Veteran’s lay statements regarding his continuous symptoms since service. Subsequent to a remand, the Veteran was afforded a VA examination in October 20019. A VA examiner noted that the Veteran’s hearing was normal at his separation from service and that he was exposed to excessive noise in his post-service occupation. Further, the examiner noted that VA did not recognize latent onset hearing loss. As such, the examiner opined that the Veteran’s bilateral hearing loss was less likely than not related to service. In October 2020, the Board found that the October 2019 VA examination was inadequate. The Board explained that lack of in-service evidence of hearing loss was not fatal to a claim for service connection and, similar to the November 2014 VA examination, the October 2019 examiner failed to consider the Veteran’s statements when forming a nexus opinion. As such, the matter was remanded and the Veteran was afforded another VA examination in November 2020. The Board notes that while the November 2014 and October 2019 VA opinions of record are inadequate, the November 2020 VA examiner provided adequate rationale in support of a negative nexus opinion. However, the Veteran has provided statements reporting exposure to hazardous noise during service without significant exposure to noise post-service that was not heavily regulated or without usage of hearing protection. The Veteran is competent to report his hearing problems and that his only exposure to hazardous noise without hearing protection was in service. Moreover, the Board finds that the Veteran’s reports are credible. Jandreau v. Nicholson, 492 F.3d 1372 (2007). (Continued on the next page)   Given the competent and credible statements from the Veteran, the Board finds that the balance of favorable and unfavorable evidence is in equipoise. As such, the Board resolves doubt in favor of the Veteran and finds that the Veteran’s bilateral hearing loss was caused by his in-service noise exposure. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Silverblatt, 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.