Citation Nr: 21010058 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 12-17 872A DATE: February 24, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT The evidence is at least in equipoise that the Veteran has bilateral hearing loss that is etiologically related to his active duty service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1962 to May 1966. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In June 2014, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing. A copy of the hearing transcript is included in the claims file. This matter was initially before the Board in November 2014 and October 2015 when it was remanded for further development. In May 2018, the Board issued a decision denying the Veteran’s claim for service connection for bilateral hearing loss. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in October 2018, the Court vacated and remanded the Board’s decision regarding bilateral hearing loss for compliance with the instructions in the Joint Motion. The Board remanded the claim in March 2020 for additional development. A September 2020 supplemental statement of the case was most recently issued, and the claim is once again before the Board. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Finally, 38 U.S.C. § 1154(a) requires that VA give ‘due consideration’ to ‘all pertinent medical and lay evidence’ in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, ‘[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.’ Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). 1. Entitlement to service connection for bilateral hearing loss. The Veteran asserts that his hearing loss is the result of noise exposure in service. The Board notes that the Veteran has already been service-connected for tinnitus based on in-service noise exposure. The Veteran has additionally submitted a buddy statement from long-time friend attesting that the Veteran’s hearing problems emerged after his service. See Statement dated January 2014. The Board finds in-service acoustic trauma is conceded. Post-service medical records document complaints of, and treatment for, hearing loss. In the most recent March 2020 remand, the Board noted the October 2018 JMR and found that the January 2016 VA addendum examination was inadequate. A prior October 2015 Board remand found the opinions of record at the time inadequate for purposes of determining service connection. Most recently, the Veteran was afforded an additional examination in September 2020. The VA examiner opined that the Veteran’s hearing loss was less likely as not caused by military acoustic trauma. The negative opinion was once again based primarily on the fact that the Veteran’s hearing was normal in service. The Board finds that this opinion is not persuasive. The Court has specifically held that a Veteran’s normal hearing at separation does not necessarily indicate that the Veteran experienced no in-service loss of hearing acuity. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). In light of the Veteran’s conceded noise exposure in service, and the fact that the Veteran has already been awarded service connection for tinnitus based on this in-service noise exposure, the Veteran will be granted the benefit of the doubt. The claim for bilateral hearing loss is granted. Further discussion of the evidence is simply not warranted. ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. M. Clark, 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.