Citation Nr: 21010600 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 17-22 601 DATE: February 25, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran’s hearing loss is etiologically related to confirmed acoustic trauma and noise exposure in service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 101, 1110, 1112, 1113, 1154, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from July 1972 to March 1976, with subsequent service in the National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In April 2020, the Veteran testified before the undersigned at a hearing via videoconference. A transcript of his testimony has been associated with the claims file. Service Connection Generally, the Veteran asserts that his current hearing loss is etiologically related to his service. More specifically, the Veteran alleges that his hearing worsened during service as a result of working as a communications center specialist in small rooms with loud radio and telephone equipment. He testified that after his discharge from service, he noticed that he could not hear as well and needed to turn up the volume on his radio and television. Additionally, he reported that he worked for several years for a post office and was not regularly exposed to loud noises following his active service. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  A veteran seeking compensation under these provisions must establish three elements: (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, 1167 (Fed. Cir. 2004).  Service connection for certain chronic diseases, such as “other organic diseases of the nervous system” (including hearing loss and tinnitus), may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a).  In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service.  38 C.F.R. § 3.307 (a).  The term “chronic disease” refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations.  38 U.S.C. § 1101 (3); 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).   Where a chronic disease under 3.309(a) is shown as such in service or in the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  In cases where a chronic disease is “shown as such in service,” the Veteran is “relieved of the requirement to show a causal relationship between the condition in service and the condition for which service-connected disability compensation is sought.”  Walker, 708 F.3d at 1336.  Instead, service connection may be granted for subsequent manifestations of the same chronic disease without any evidence of link or connection between the chronic disease shown in service and manifestations of the same disease at a later time.  In other words, “there is no ‘nexus’ requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease.”  Id.    If evidence of a chronic disease is noted during service or during the presumptive period, but the chronic condition is not “shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned,” i.e., “when the fact of chronicity in service is not adequately supported,” then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease.  Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed.  Id. at 1339.  Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1).  Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2).  This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert, 1 Vet. App. at 49.  When there is an approximate balance of the positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.  First, the Board will address whether the Veteran has a current diagnosis of hearing loss for VA purposes. Pursuant to 38 C.F.R. § 3.385, VA considers impaired hearing 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. Here, the Veteran’s April 2016 VA examination results indicate that he has a current diagnosis of bilateral sensorineural hearing loss in the frequency range of 500 to 4000 Hertz. As such, the first element of the test for service connection has been satisfied. The central questions before the Board are thus whether the Veteran’s hearing loss was incurred or aggravated during his service and whether it is etiologically related to his service. Turning to the first question, whether the Veteran’s hearing loss had its onset during or was aggravated by his service, the Veteran has consistently reported that he worked as a communications center specialist during service, which entailed regular exposure to noise from various communications machinery and equipment. He testified that he began noticing that his hearing had worsened after being discharged from service but that he was young and did not think he should complain about it. His Form DD-214 confirms his military occupational status, while his military personnel records reflect that his duties regularly involved working with radio and telephone equipment. The Board also notes that the Veteran’s service treatment records contain audiological testing data from the time of his enlistment and various other points in his service. At his April 1972 enlistment examination, pure tone thresholds, in decibels, were as follows: Ear 500 Hertz 1000 Hertz 2000 Hertz 3000 Hertz 4000 Hertz Right 15 5 5 X 5 Left 20 5 15 X 5 A hearing conservation data audiogram was also obtained in March 1975. This data showed that the Veteran had experienced auditory threshold shifts in both ears. Pure tone thresholds, in decibels, were as follows: Ear 500 Hertz 1000 Hertz 2000 Hertz 3000 Hertz 4000 Hertz Right 15 15 10 15 15 Left 25 10 20 10 5 This data indicates that he experienced auditory threshold shifts in both ears at all frequencies except at the 4000 Hertz frequency in the left ear and the 500 Hertz frequency in the right ear. Stated differently, this audiogram demonstrates that during his service his hearing worsened at almost all frequencies. On the other hand, service treatment records contain a separation audiogram from March 1976 reflecting pure tone thresholds, in decibels, at the following frequencies: Ear 500 Hertz 1000 Hertz 2000 Hertz 3000 Hertz 4000 Hertz Right 10 5 5 10 0 Left 10 5 10 10 0 Additionally, the Veteran’s entrance examination for the Air National Guard in March 1977 reflects the following audiogram results: Ear 500 Hertz 1000 Hertz 2000 Hertz 3000 Hertz 4000 Hertz Right 0 5 0 5 5 Left 0 5 0 10 0 Last, a periodic examination in March 1981 reflects pure tone thresholds, in decibels, at the following frequencies: Ear 500 Hertz 1000 Hertz 2000 Hertz 3000 Hertz 4000 Hertz Right 15 10 0 5 0 Left 15 5 0 0 0 The Board acknowledges that the Veteran’s separation examination audiogram, as well as the audiograms from his National Guard service, indicate normal hearing after discharge from active duty. However, the record also contains a March 1975 hearing conservation audiogram suggesting that his hearing worsened during service. Having considered this positive evidence, as well as the Veteran’s credible testimony regarding the onset of his hearing loss and his service personnel records, the Board finds that the evidence is at least in equipoise that the Veteran’s hearing loss had its onset during his service. Turning to the issue of whether the Veteran’s in-service hearing loss is etiologically related to his current hearing loss, the Board notes that the Veteran’s post-service VA treatment records reflect that he reported to a VA audiologist that he had noticed hearing loss since his time in service but that it had recently become more bothersome. See June 2015 VA Physical Medicine Rehab Consult. The Board notes that this statement is considered exceptionally trustworthy as it was made for the purpose of medical diagnosis and prior to the filing of his claim. See White v. Illinois, 502 U.S. 346, 356 (1992). The Board also notes that the Veteran was afforded a VA examination in April 2016 with respect to his claim for hearing loss and that the April 2016 VA examiner offered a negative etiology opinion. More specifically, the examiner opined that his hearing loss was less likely as not related to his service because his separation audiogram reflected normal hearing and no significant threshold shifts when compared to his enlistment audiogram. Nonetheless, the Board is not required to accept the opinion of any examiner. Hayes v. Brown, 5 Vet. App. 60 (1993). To that end, the Board finds that the April 2016 VA examiner’s opinion is inadequate. Indeed, the VA examiner failed to consider the Veteran’s lay statements regarding the onset of his hearing loss, as well as other relevant evidence, such as his personnel records and his in-service hearing conservation data showing worsening hearing. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As such, the April 2016 VA examiner’s nexus opinion has little, if any, probative value. (Continued on the next page)   Ultimately, although there are no probative opinions addressing the etiology of the Veteran’s hearing loss, the Board finds that the Veteran’s lay statements regarding the continuity and duration of his hearing loss symptoms to be sufficient to establish entitlement to service connection in this instance. Furthermore, the Board notes that medical evidence is not categorically required to satisfy the nexus element of the service connection framework. See Davidson v. Shinseki, 581 F.3d 1212 (Fed. Cir. 2009). Having considered the foregoing, the Board finds that the evidence is at least in equipoise that Veteran’s hearing loss had its onset during service and has persisted since that time. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Rademacher, Associate 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.