Citation Nr: 21010418 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 17-04 077 DATE: February 24, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT The evidence is in relative equipoise as to whether the Veteran's current bilateral hearing loss is related to in-service acoustic trauma. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral hearing loss have been satisfied. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from August 1963 to August 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In October 2019, the Veteran testified at a personal hearing before a Veterans Law Judge (VLJ) who is no longer available to participate in the appeal. In February 2020, the Veteran indicated he did not wish to appear at another Board hearing before a different VLJ. In May 2020, the Board remanded the matter to the Agency of Original Jurisdiction (AOJ) for additional development. Entitlement to service connection for bilateral hearing loss. The Veteran contends his bilateral hearing loss began as a result of noise exposure during military service. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.03. Service connection may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in-service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Where a Veteran served 90 days or more during a period of war or during peacetime service after December 31, 1946, and a chronic disease, including bilateral hearing loss, becomes manifest to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. If a condition listed as a chronic disease in § 3.309(a) is noted during service, but is either shown not to be chronic or the diagnosis could be legitimately questioned, then a showing of continuity of related symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the continuity of symptomatology provisions of 38 C.F.R. § 3.303(b) only apply to a chronic disease listed in § 3.309(a)). 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 a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). A November 2019 private evaluation report shows the Veteran currently has VA-defined bilateral hearing loss. As the Veteran served as an electrician, VA conceded he was exposed to moderate acoustic trauma during active service. Therefore, the remaining question before the Board is whether the current bilateral hearing loss is etiologically related to his military service. Based on a comprehensive review of the record, the Board finds there is evidence for and against the Veteran’s claim. The evidence against the claim includes the Veteran’s service treatment records, which do not document complaints of left ear hearing loss during active duty service, and February 2012 and September 2020 VA examination reports. The February 2012 examiner diagnosed right ear hearing loss but found she could not provide a medical opinion regarding the etiology of the hearing loss without resorting to speculation. She explained that only the unreliable whispered-voice test was performed during the Veteran’s separation examination. She noted the right ear hearing loss exceeded the normal loss that is expected due to aging but that the Veteran reported the hearing loss only began two years earlier. VA-defined left ear hearing loss was not shown. The September 2020 VA examiner noted puretone test results and the Maryland CNC speech discrimination score were not reliable in this case due to the Veteran’s inability to follow instructions and inconsistencies between observed communication abilities and the results. He found he could not opine on the etiology of the right ear hearing loss without resorting to speculation but opined left ear hearing loss was not at least as likely as not related to service. The examiner explained that left ear hearing was normal on February 2012 and February 2015 evaluations. He noted that in 2006, the Institute of Medicine stated there was insufficient basis to conclude that permanent hearing loss can be caused by noise exposure that occurred long before. The evidence in favor of the claims includes the Veteran’s service treatment records, Board hearing testimony, and private treatment records. A March 1964 service treatment record notes the Veteran complained of right ear hearing loss. He was treated with a decongestant. At the October 2019 Board hearing, the Veteran reported he first started noticing his hearing loss while working in the engine room of a ship and that it had continued since that time. He noted that he told the 2012 VA examiner that the hearing loss had increased in severity two years before the examination. In a November 2019 statement, the Veteran’s treating physician opined the Veteran’s hearing loss was at least as likely not caused by or a result of the Veteran’s active service. A November 2019 private treatment record notes an audiogram revealed hearing loss most likely due to noise exposure from the service. The Board finds the evidence for and against the claim is of equal weight. Both VA examiners’ opinions are of limited probative value. The February 2012 examiner noted she could not provide an etiology opinion without resorting to speculation. The September 2020 examiner opined the left ear hearing loss was not related to service, but did not address the private provider’s opinion or the Veteran’s reports that his hearing loss manifested during service and has continued since. The Board acknowledges that the private treating physician did not provide a detailed rationale for finding the hearing loss was caused by noise exposure in service, but it’s clear the physician was aware of the Veteran’s history and based the opinion on the results of the audiogram. Accordingly, the Board finds the opinion is at least as probative as the VA examiners’ opinions. In addition, the Veteran is competent to report he has experienced hearing difficulties since service, and the Board finds his statements are credible. 38 C.F.R. § 3.303; Walker, 708 F.3d 1331. While the February 2012 examiner noted the Veteran reported the hearing loss only began two years earlier, the Veteran explained during the Board hearing that he told the examiner it had increased in severity during that time. Notably, there are no post-treatment service records or prior claims for service connection associated with the file that suggest the Veteran denied having hearing loss between service and the examination. The evidence for and against the claim is in relative equipoise. The Board must therefore resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Accordingly, service connection for bilateral hearing loss is warranted. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board William A. Skowronski, 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.