Citation Nr: 21012093 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 06-33 574 DATE: March 3, 2021 ORDER Service connection for bilateral hearing loss is granted. FINDING OF FACT The weight of the most probative evidence is at least in equipoise as to whether the Veteran’s bilateral hearing loss for VA purposes is etiologically related to in-service acoustic trauma. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1101, 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1966 to September 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been before the Board on previous occasions. It was remanded for additional development in March 2012, June 2013, April 2016, and denied in May 2017. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2018 Order, the Court vacated the May 2017 decision and remanded the appeal for action consistent with the Joint Motion for Remand (JMR). The Board subsequently remanded the appeal for a new audiological examination and medical opinion in November 2018, March 2020, and most recently, in October 2020. It has now returned for appellate review. The Veteran testified before the Board in September 2009 (a now retired Veterans Law Judge) and before the undersigned in August 2014, and transcripts of those proceedings are associated with the claims file. This case has been advanced on the docket pursuant to 38 C.F.R. § 20.900(c). Service Connection Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Where a disease is first diagnosed after discharge, service connection will be granted when all of the evidence, including that pertinent to service, establishes it was incurred in active service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). Service connection requires evidence showing: (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 condition incurred or aggravated by service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).   Impaired hearing will be considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz (Hz) is 40 decibels (dB) or greater; when the auditory thresholds for at least three of those frequencies are 26 dB or greater; or when Maryland CNC speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. Certain chronic diseases, including sensorineural hearing loss, will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007); 38 C.F.R. § 3.159(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). *** The Veteran seeks service connection for bilateral hearing loss. 12/18/2003 VA 21-526, Veterans Application for Compensation or Pension. He asserts he served in a heavy artillery unit in Vietnam, where he was regularly exposed to hazardous noise from helicopters, M110 howitzers, and 175mm artillery pieces without ear protection, resulting the onset of bilateral hearing loss shortly after separation from service. See 09/20/2014 Hearing Transcript. For the following reasons, the Board finds that the Veteran has a current diagnosis of bilateral hearing loss as defined by VA and that the evidence is at least evenly balanced as to whether his hearing loss is related to hazardous noise exposure in service. The Veteran was most recently afforded a VA audiological examination in November 2020, where the examiner diagnosed him with bilateral sensorineural hearing loss. 12/22/2020 C&P Exam. The evidence of record thus indicates that the Veteran has a current diagnosis of bilateral hearing loss for VA compensation purposes. See 38 C.F.R. § 3.385. Next, the Board finds that the Veteran’s reports regarding in-service exposure to noise from helicopters and heavy artillery fire are competent and credible, and exposure to acoustic trauma in service is therefore established. In this regard, the Veteran’s Form DD-214 reveals that the Veteran’s military occupation specialty (MOS) was cook. However, his military personnel records also indicate that the Veteran was awarded a secondary MOS to include an assignment to a special forces unit. See 03/03/2004 Military Personnel Record. Further, the Board finds the Veteran’s statements that his hearing loss began immediately after discharge from active duty service to be both competent and credible. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge); see also Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (Fed. Cir. 2007) ("the Board retains discretion to make credibility determinations and otherwise weigh the evidence submitted"). Thus, this appeal turns on whether there is a nexus between the Veteran's bilateral hearing loss for VA purposes and service. The Veteran has undergone numerous VA audiological examinations throughout the course of his appeal, all of which confirm that he has a current diagnosis of bilateral hearing loss for VA purposes. The medical opinions of record consist of VA medical opinions obtained in March 2004, April 2004, May 2012, July 2016, September 2019, and March 2020, and a private medical opinion submitted by the Veteran in September 2014. However, aside from the November 2020 medical opinion obtained pursuant to the Board’s October 2020 remand, the Board, at various times, has previously found all the aforementioned medical opinions of record to be inadequate for decision-making purposes. See 03/26/2012 BVA Decision, 04/29/2016 BVA Decision, 11/21/2018 BVA Decision, 03/04/2020 BVA Decision, and 10/28/2020 BVA Decision. As directed by the October 2020 Board decision, the Veteran was most recently afforded a VA audiological examination in November 2020. 11/30/2020 C&P Exam. Regarding the etiology of the Veteran’s bilateral hearing loss, the November 2020 examiner acknowledged the Veteran’s military noise exposure, but opined that his hearing loss was less likely than not related to active military service. See 12/22/2020 C&P Exam. As rationale, the examiner stated that a review of the Veteran’s service treatment records (STRs) showed normal hearing upon examination at entrance and exit, and that medical research does not support the delayed onset of hearing loss due to acoustic trauma. The examiner further opined that the Veteran’s bilateral hearing loss is most likely related to post-military noise exposure. The Board acknowledges the November 2020 examiner’s negative opinion as to nexus. However, the Board finds that the opinion is inadequate, as it relies on the absence of evidence oh hearing loss in the Veteran’s STRs to corroborate in-service injury. See Dalton v. Nicholson, 21 Vet. App. 23 (2007); Smith v. Derwinski, 2 Vet. App. 137, 140 (1992). Further, the Board finds that the November 2020 medical opinion fails to comply with the Board’s October 2020 remand directives, also rendering the opinion inadequate. Compliance with the Board’s remand directives is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268, 271 (1998). Here, the October 2020 Board remand instructed the VA examiner that, if it was the opinion of the examiner that the Veteran’s audiological disorder is the result of aging, post-service noise exposure, or any other process not related to in-service acoustic trauma, then the examiner should provide a rationale to fully explain why the Veteran’s current symptomatology is not consistent with in-service noise exposure or why such exposure is not at least a contributing factor to any current hearing loss. See 10/28/2020 BVA Decision at 7. The November 2020 examiner opined that the Veteran’s hearing loss was the result of post-service noise exposure or aging, but failed to address why the Veteran’s established in-service noise exposure was not at least a contributing factor to any current hearing loss disability. See 12/22/2020 C&P Exam. As the November 2020 opinion fails to comply with the Board’s remand directives, the Board finds it is inadequate for decision-making purposes and affords it little probative weight. See Stegall, 11 Vet. App. at 271; see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In light of the above, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s current bilateral hearing loss was caused by acoustic trauma in service. As discussed above, the Veteran has a current diagnosis of bilateral hearing loss for VA purposes, his exposure to hazardous noise in trauma is established, and he has credibly and competently testified that he began to experience symptoms of bilateral hearing loss immediately after separating from active military service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, the Board finds that entitlement to service connection for bilateral hearing loss is warranted. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.385. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Tremont 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.