Citation Nr: 21010795 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 14-31 857A DATE: February 25, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT The probative evidence of record indicates the Veteran’s bilateral hearing loss is a result of service or is etiologically related to in-service noise exposure. CONCLUSION OF LAW The criteria for a grant of service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 11131, 5107(b); 38 C.F.R. §§ 3.1, 3.6, 3.102, 3.159, 3.303, 3.304, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from February 1986 until his honorable discharge in June 1986, with additional service in the United States Marine Corps Reserve. The Board thanks the Veteran for his service to our country. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office. The Board notes the Veteran requested a videoconference hearing before a Veterans Law Judge in connection with his appeal. However, he was a “no-show” for the scheduled hearing and has not provided any good cause for his failure to appear or requested rescheduling. The hearing request is considered withdrawn. 38 C.F.R. § 20.704(d). A Power of Attorney (POA) clarification letter was sent to the Veteran on February 7, 2021 requesting clarification on whether he was represented. The letter advised the most recent VA Form 21-22, received March 9, 2020, was not signed by a representative of the Veterans of Foreign Wars (VFW), thus making the form invalid. The Veteran has not since responded to the request for POA clarification, or otherwise appointed a new POA. This is not prejudicial to the Veteran because of the favorable decision below. Legal Criteria for Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prevail on the issue of service connection, the evidence must show: (1) the existence of a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307, 3.309(a). The chronic diseases listed in 38 C.F.R. § 3.309(a) include sensorineural hearing loss. The presumption for chronic diseases relaxes the evidentiary requirements for establishing entitlement to service connection. Walker v. Shinseki, 708 F.3d 1331, 1138 (Fed. Cir. 2012). Specifically, § 3.303(b) provides that when a chronic disease is established during active service, subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service (“intercurrent causes”). If the evidence is not sufficient to show that the disease was chronic at the time of service, then the claim may be established with evidence of continuity of symptoms after service, which is a distinct and lesser evidentiary burden than the nexus element three-part test under Shedden. Walker, 708 F.3d at 1138; 38 C.F.R. § 3.303(b). Showing a continuity of symptoms after service itself “establishes the link or nexus” to service and also “confirm[s] the existence of the chronic disease while in service or [during a] presumptive period.” In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for any evidence that it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). It is noted that competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994). In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (Fed. Cir. 1996). 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; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to service connection for bilateral hearing loss. Impaired hearing is defined as a disability under VA law when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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. The threshold for normal hearing is from 0 to 20 decibels; higher thresholds indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). Initially, the Board notes the Agency of Original Jurisdiction made the following favorable findings: (1) the Veteran has been diagnosed with a bilateral hearing loss disability and (2) the Veteran’s military occupational specialty of Field Artillery Cannon Crewman shows a high probability of exposure to hazardous noise exposure, so exposure to hazardous noise during military service is conceded. See October 2012 rating decision. Thus, the question before the Board is whether the Veteran’s bilateral hearing loss was incurred in or related to his military service, to include conceded in-service noise exposure. The Board acknowledges the Veteran’s June 1985 Marine Corps reserve enlistment examination, and June 1986 active duty separation examination do not show hearing loss for VA purposes. A May 1987 service treatment record from the Veteran’s reserve service notes a history of hearing loss with a recommendation for audio specialist examination. The absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability, i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above, and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley, 5 Vet. App. at 159. On his initial application for service connection, the Veteran asserted his bilateral hearing loss occurred during his time as an Artillery Crewman during military service. See April 2012 VA Form 21-526. The Veteran was afforded a VA audiological examination in October 2012. During the examination the Veteran reported military noise exposure due to artillery cannon fire. He reported wearing hearing protection (earplugs). He denied occupational and recreational noise exposure. The examiner diagnosed bilateral sensorineural hearing loss and provided a negative nexus opinion. In support of this opinion, the examiner stated the Veteran’s service treatment records showed no clinically significant hearing threshold shift or hearing loss to VA standards. Additionally, the examiner stated there is no current scientific evidence showing that noise-induced hearing loss occurs years after the acoustic trauma. See October 2012 VA examination. The Veteran attended a subsequent audiological examination in October 2015. During the examination the Veteran reported military noise exposure to small arms fire, and artillery with hearing protection. He denied civilian and recreational noise exposure. The examiner diagnosed bilateral sensorineural hearing loss and provided a negative opinion regarding the relationship between the Veteran’s bilateral hearing loss and his military service. The examiner’s rationale for this opinion was that the Veteran’s hearing thresholds at the time of his entrance examination was within normal limits and there was no record of hearing loss or complaint thereof during the Veteran’s military service. See October 2015 VA examination. The Board has the responsibility of determining the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The Board finds the October 2012 and October 2015 VA medical opinions to be inadequate. In this regard it must be clear the examiner has considered all procurable and assembled data prior to reaching such a conclusion. Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). Specifically, the examiners did not address the Veteran’s competent and credible statements regarding in-service onset and continuity of his symptoms since service separation. Additionally, the Board notes, a negative etiological opinion based solely upon the lack of evidence of complaints or treatment for symptoms in a Veteran’s service treatment records is inadequate. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Furthermore, entitlement to service connection for hearing loss does not require the criteria under 38 C.F.R. § 3.385 be met during service. Hensley, 5 Vet. App. 155. As the October 2012 and October 2015 medical opinions are inadequate, they cannot serve as the basis of a denial of entitlement to service connection. As discussed above, the Veteran reported experiencing symptoms of hearing loss while in service. The Veteran is competent to report the onset and continuation of his hearing loss, and the Board finds his statements credible. See Layno, 6 Vet. App. at 470. The Board notes lay 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. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). After a careful review of the record, the Board finds the Veteran’s bilateral hearing loss had its onset in service due to hazardous noise exposure and has continued since that time. Walker, 708 F.3d at 1338. (Continued on the next page) In this regard, the Veteran has competently and credibly indicated the onset of hearing loss during his military service, coincident with his duties as a Field Artillery Cannon Crewman, and that he has continued to experience such symptoms since service. He is competent to report symptoms of hearing loss, as they are subject to and readily observable by laypersons, and the Board has no reason to doubt his credibility. Thus, the Board resolves all doubt in the Veteran’s favor and finds his bilateral hearing loss is related to his in-service noise exposure. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Grace Johnk, 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.