Citation Nr: 21009371 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 16-13 600 DATE: February 22, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran experienced hearing loss during combat service, and his current bilateral hearing loss is due to service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. § 1110, 1112, 1113, 1154(b), 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1965 to January 1968. This matter was initially before the Board in August 2019 where it was remanded for additional development. Specifically, the Board held that the Veteran did not waive AOJ consideration. The matter returned to the Board in October 2020, where it was remanded again. The Board determined that the Veteran should be afforded an additional examination. Entitlement to service connection for bilateral hearing loss. The Veteran appeals the denial of service connection for a bilateral hearing loss disability. Service connection may be established for disability resulting from personal injury sustained or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, such as sensorineural hearing loss and organic diseases of the nervous system, may be presumed to be service connected if manifested to a degree of 10 percent disabling or more within one year after separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For the showing of a chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The threshold for normal hearing is from 0 to 20 decibels, and puretone thresholds above 20 decibels may demonstrate hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993); McKinney v. McDonald, 28 Vet. App. 15, 24-5 (2016). However, hearing loss at this level does not equate as being a “disability” for VA purposes. McKinney, 28 Vet. App. at 24-5. Specifically, hearing loss does not constitute a disability if it does not meet the threshold requirements for 38 C.F.R. § 3.385. Palczewski v. Nicholson, 21 Vet. App. 174, 179-80 (2007). 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. As a preliminary matter, the Board notes that the Veteran is service-connected for PTSD, stemming from daily motor attacks and gunfire he experienced during service. As a result, the Board concedes the Veteran’s claimed exposure to noise during service. Furthermore, as combat service has been conceded, the provisions of 38 U.S.C. § 1154(b) are applicable in this case, which state, in pertinent part, that in any case where a veteran is engaged in combat during active service, lay or other evidence of service incurrence of combat related disease or injury will be considered sufficient proof of service connection if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence during service, and, to that end, VA shall resolve every reasonable doubt in favor of the veteran. The Federal Circuit has held that the presumption found in § 1154(b) applies not only to the potential cause of a disability, but also to whether a disability itself was incurred while in service. See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). The Veteran’s service treatment records did not disclose hearing loss disability per VA standards. Rather, there is no dispute that he first manifested hearing loss per VA standards many years after service. The Veteran was afforded a VA examination in December 2014. The examiner opined that the Veteran’s bilateral hearing loss disability was not related to service. In support of this conclusion, the clinician cited to the Veteran’s treatment records and stated that upon discharge, the Veteran’s hearing was normal and there was no significant shift in hearing thresholds during service. The examiner noted that there was no record of complaint or treatment in the service records. Additionally, the examiner cited a sponsored Institute of Medicine (IOM) report on delayed onset hearing loss, concluding that it is unlikely that the onset of hearing loss begins years after noise exposure. While a portion of the IOM report found there is no evidence of delayed onset hearing loss due to noise exposure, another portion of the same IOM report found that “an individual’s awareness of the effects of noise on hearing may be delayed considerably after the noise exposure.” Comm. on Noise-Induced Hearing Loss and Tinnitus Assoc’d with Military Service from World War II to the Present, Inst. of Medicine, Noise and Military Serv.: Implications for Hearing Loss and Tinnitus, at 203-04 (Larry E. Humes, Lois M. Joellenbeck, and Jane S. Durch eds., 2005. The Veteran was afforded a second examination in November 2020 to rectify the possible theory of service connection involving delayed onset for hearing loss. The examiner opined that it is less likely than not that his hearing loss is related to noise exposure. The examiner reasoned that he had a normal hearing threshold upon separation. Additionally, the examiner stated the Veteran’s hearing loss is related to post-service noise exposure. In its rationale, he stated the following: “Research studies have shown that hazardous noise exposure has an immediate effect on hearing and does not have delayed onset. Without evidence of a decrease in hearing thresholds during service a nexus cannot be established in this case.” However, the examiner did not discuss the IOM report raising the possibility of delayed onset for hearing loss, which was specifically requested in the Board’s October 2020 remand directives. In analyzing the probative value on the medical opinions, the Board finds flaws in the rationales provided. In regard to the medical examinations, the examiners provided a negative nexus opinion because the Veteran had a normal hearing evaluation upon separation. However, normal puretone thresholds during service does not necessarily preclude service connection. See 38 C.F.R. § 3.303(d); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Additionally, the November 2020 is inadequate as it did not provide an explanation regarding the IOM report about delayed onset of hearing loss. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that veterans are entitled to compliance with Board remand instructions). In considering such deficiencies, the Board notes that it has been conceded that the Veteran was exposed to hazardous noise during service. Throughout the appeal, the Veteran has consistently stated that he experienced daily motor attacks and gunfire when he served in Vietnam. However, more specifically, the Veteran testified that contemporaneous in time to combat he would experience ear ringing and dull or muffled sounds. Additionally, the Veteran submitted a lay statement from his wife in September 2017, which the Board finds credible. She stated that she met the Veteran in September 1967 and that she has witnessed the Veteran’s hearing problems since service. She added that she would often have to repeat herself. According to the Veteran’s claim file, he has been married since April 1968. As noted above, the IOM report recognized that “an individual’s awareness of the effects of noise on hearing may be delayed considerably after the noise exposure.” Here, the Veteran actually described a perceived temporary decrease in hearing acuity proximate in time to combat service involving mortar attacks. The Federal Circuit has held that the presumption found in § 1154(b) applies not only to the potential cause of a disability, but also to whether a disability itself was incurred while in service. See Reeves, 682 F.3d at 999. Thus, the Board finds that the Veteran manifested decreased hearing acuity during service pursuant to 38 U.S.C. § 1154(b) and Reeves. The Board further observes that there is a presumption of service connection for a chronic disease such as sensorineural hearing loss, rebuttable only by clearly attributable intercurrent causes, which manifests during service and then again “at any later date, however remote.” See Groves v. Peake, 524 F.3d 1306, 1309 (2008). Given the above legal standards and presumptions, the Board finds that the Veteran experienced hearing loss during combat service, and his current bilateral hearing loss is due to service. 38 U.S.C. § 5107(b); see Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (“By requiring only an ‘approximate balance of positive and negative evidence’..., the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding... benefits”). T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Adeleke, Tomi 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.