Citation Nr: 21012302 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 07-10 229A DATE: March 4, 2021 ORDER Service connection for hearing loss disability is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his bilateral hearing loss disability is at least as likely as not related to in-service noise exposure. CONCLUSION OF LAW The criteria for service connection for hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from March 1969 to March 1971; including combat service as a light weapons infantryman in Vietnam from August 21, 1969 through April 2, 1970. The case is before the Board of Veterans’ Appeals (Board) on appeal from a March 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been remanded by the Board many times: April 2014, July 2014, September 2017, and May 2020. During remand status following the May 2020 Board remand, a November rating decision granted service connection for tinnitus. In May 2014, the Veteran testified at a hearing before a Veterans Law Judge (VLJ) other than the undersigned. A transcript of the hearing is associated with the record. A May 2017 Board letter notified the Veteran that the VLJ who had presided at this 2014 Board hearing was not available to participate in this appeal and offered an opportunity for another hearing, which he declined. See Correspondence (May 2017). Service connection for hearing loss The Veteran contends that his hearing loss disability is due to or the result of in-service noise exposure. Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in- service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a), (d). The Board concludes that, resolving reasonable doubt in the Veteran’s favor, his bilateral hearing loss disability is at least as likely as not related to in-service noise exposure. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. First, the Veteran is a combat veteran and his exposure to loud acoustic sounds is conceded. See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). Second, the Veteran has a current hearing loss disability as defined by VA. 38 C.F.R. § 3.385. Medical records and a July 1998 VA examination report document findings for hearing loss disability, described as bilateral profound hearing loss. See VA Examination (July 1998). Third, there is competent, credible evidence both for and against the claim. In these circumstances, reasonable doubt will be favorably resolved in the Veteran’s favor. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1365-66 (Fed. Cir. 2001). Although a hearing loss disability is not shown in service or within one year after the Veteran’s service discharge, the absence of in-service evidence of hearing loss disability is not fatal to a claim for service connection for hearing loss disability. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing disability (i.e., one meeting the requirements of section 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. See Hensley v. Brown, 5 Vet. App. at 159; 38 U.S.C. § 1154. Evidence in favor of the claim includes the Veteran’s competent, credible reports of diminished hearing acuity in 1971. Indeed, VA received his original VA disability claim in March 1971 for hearing loss of the right ear in March 1971, which was immediately after service. His 1971 VA examination reflects a history of poor hearing while in Vietnam. Similarly, a 1998 VA examination report reflects a history of hearing loss since 1971. An October 2002 VA medical opinion reflects that “[i]t is as least as likely as not that the patient's hearing loss is the result of acoustic trauma to which he was exposed while serving in combat in Vietnam.” The Veteran’s May 2014 sworn testimony also shows onset of hearing loss symptoms in service. It is noted that the Veteran is competent to report hearing loss symptoms as this is susceptible to lay observation; he is also credible as he has been a consistent historian as to when he first noticed hearing loss symptoms. See Layno v. Brown, 6 Vet. App. 465, 469 (1994; Caluza v. Brown, 7 Vet. App. 498 (1995). Evidence against the claim includes VA treatment records and medical opinions. In summary, these reflects that the Veteran had “sudden hearing loss” in June 1997 following flu-like symptoms and dizziness. It was thought that the cause of a profound bilateral hearing loss was bilateral labyrinthitis, and he underwent a cochlear implant in his left ear. A December 2019 VA examination reflects that the Veteran’s hearing loss is at least as likely as not due to “some autoimmune disorder” because he had reported the sudden onset of hearing loss in 1997 and that autoimmune disorders “could” lead to a sensorineural hearing loss and deafness. It is noted that the opinion is speculative and, hence, has diminished probative value. See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). An October 2020 VA medical opinion reflects that the Veteran’s hearing loss is not related to in-service noise exposure given the absence in-service threshold shifts although it was not explained why this factor is dispositive of the matter. Hence, this opinion too has diminished probative value. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Weighing neither for nor against the claim, a November 2002 medical report reflects that “[t]he etiology of the sudden hearing loss is unknown to us at this time. Likely etiologies are severe viral labyrinthitis or potentially even an initial episode of his lupus. This would not explain, however, why his autoimmune profiles preoperatively were unremarkable as is my recollection.” On balance, the evidence is roughly in equipoise. Therefore, the benefit of any doubt must be afforded to the Veteran. See 38 U.S.C.. § 5107; 38 C.F.R. § 3.102. See also, Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the claim is granted. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Fussell, 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.