Citation Nr: 21009312 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 15-02 589 DATE: February 22, 2021 ORDER Entitlement to service connection for left ear hearing loss is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran’s current left ear hearing loss began during active service. CONCLUSION OF LAW With reasonable doubt resolved in the Veteran’s favor, the criteria for service connection for left ear hearing loss have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 1971 to March 1974. This matter initially came before the Board of Veterans’ Appeals (Board) from a June 2012 rating decision. In December 2018, the Board denied the Veteran’s claims of service connection for bilateral hearing loss and tinnitus. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In March 2020, the Court issued an Order that granted a Joint Motion for Remand (Joint Motion) filed by counsel for the Veteran and VA, vacated the Board’s decision on both issues, and remanded the matters to the Board for readjudication in compliance with the Joint Motion. In October 2020, the Board granted the Veteran’s claims of service connection for right ear hearing loss and tinnitus. The issue of entitlement to service connection for left ear hearing loss was remanded for further development. Entitlement to service connection for left ear hearing loss. The Veteran asserts that left ear hearing loss had its onset in service and resulted from exposure to hazardous noise while in service. In-service hazardous noise exposure has been conceded. See October 2020 Board decision. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for a disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, to include organic diseases of the central nervous system (e.g., sensorineural hearing loss), are presumed related to service if noted as chronic in service; if 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); 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a). For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In this case, a December 2020 VA examination report shows that the Veteran has a current diagnosis of left ear sensorineural hearing loss for VA purposes. See id. The audiologist who conducted an April 2012 VA examination opined that the Veteran’s hearing loss was not likely (not “at least as likely as not”/“50 percent probability or greater”) caused by or a result of service. The examiner reasoned that although the Veteran reported the onset of hearing loss in service, the objective evidence did not support that time of onset. A September 2005 Institute of Medicine Report on noise exposure in the military concluded that based on current knowledge, noise-induced hearing loss occurs immediately (i.e., there is no scientific support for delayed onset noise-induced hearing loss weeks, months, or years after the exposure event). Therefore, as the Veteran’s hearing was within normal limits at the time of his separation from service, with no significant threshold shift evident in service, his hearing loss was not likely (“less likely as not”/“less than 50/50 probability”) caused by or a result of in-service noise exposure. The examiner who conducted the December 2020 VA examination gave a negative etiological opinion that, given the Veteran’s hearing was within normal limits at separation from service and had progressed to very mild loss as recently as 2012 - 40 years following service - it was less likely than not that his current left ear hearing loss was related to service. The examiner referred to a study published in November 1990 that indicated that noise-induced hearing loss was almost always bilateral and that it did not continue to progress once the noise exposure had ceased. The examiner did not acknowledge that the Veteran has been granted service connection for right ear hearing loss. However, the lack of any evidence showing that the Veteran exhibited hearing loss consistent with the regulatory threshold requirements for hearing loss disability during service is not fatal to his claim. See id. The laws and regulations do not require in-service complaints of, or treatment for, hearing loss, to establish service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Where there is no evidence of the Veteran’s hearing disability until many years after separation from service, “if evidence should sufficiently demonstrate a medical relationship between the appellant’s in-service exposure to loud noise and his current disability, it would follow that the appellant incurred an injury in service.” Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The Veteran has consistently maintained that he first noticed loss of hearing acuity while in service and that he has experienced the same symptoms from that time to the present. Except for a November 1973 note indicating a history of noise exposure, service treatment records (STRs) are silent concerning any hearing loss or tinnitus symptoms or diagnoses. The Board notes that hearing loss manifests the types of symptoms that are readily amenable to lay observation as they are subjective to the claimant. The Veteran is competent to report his symptoms and their frequency. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The VA examination reports and correspondence of record note the Veteran’s continued reports detailing his left ear hearing loss symptoms as well as his contention that he was exposed to hazardous noise in service. Nothing in the record contradicts his statements, and his statements are generally consistent with the circumstances of his service. Thus, his statements are considered competent, credible and probative. While the Board cannot ignore or disregard the opinions of the examiners who conducted the April 2012 and December 2020 VA examinations, the Board is free to assess the probative value of medical evidence. See Willis v. Derwinski, 1 Vet. App. 66 (1991), Wilson v. Derwinski, 2 Vet. App. 614 (1992). In this case, the VA examiners’ opinions are problematic because they do not consider the Veteran’s competent account of the onset of symptoms in service and their continuity thereafter. The opinions also primarily rely on the Veteran having normal hearing within four months of leaving service, which is not a bar to service connection. While the examiners relied on studies published in September 2005 and November 1990 to support their opinions, the Veteran’s representative has cited a March 2017 article published by the National Institute on Deafness and Other Communication Disorders, which concluded that hazardous noise can damage sensitive structures in the inner ear and cause residual long-term damage to one’s hearing due to the damage and eventual death of hair cells within the inner ear. See November 2018 Brief. Further, while the December 2020 examiner concluded that noise-induced hearing loss was almost always bilateral, she did not address why this was not applicable in the Veteran’s case, as he is service-connected for right ear hearing loss. As such, the Board affords the April 2012 and December 2020 VA opinions little probative value. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The most probative evidence of record shows a current diagnosis of hearing loss disability in the left ear, which the Veteran has reported began during service and has continued from that time to the present. These assertions are credible, competent, and significant, in light of his exposure to the conceded hazardous noise during active duty. There is no adequate medical opinion that is contrary to a conclusion that the current left ear hearing loss had its onset in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for left ear hearing loss is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Brian J. Elwood Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Bristow Williams, 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.