Citation Nr: 21014313 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 18-53 563 DATE: March 11, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's bilateral hearing loss was caused by service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Army from August 1969 to March 1971. He served in the Republic of Vietnam and was awarded the Bronze Star Medal. In February 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ) via videoconference. A copy of the transcript will be associated with the electronic claims file. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110, 38 C.F.R. § 3.303(a). Service connection can be demonstrated for a disease diagnosed after service when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection, the evidence must generally show: (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 may also be granted through the application of statutory presumptions for chronic conditions, which includes sensorineural hearing loss and tinnitus. See 38 C.F.R. §§ 3.303(b), 3.309(a) (2019); see also 38 U.S.C. §§ 1112, 1137 (2012). First, a claimant may benefit from a presumption of service connection where a chronic disease has been shown during service. 38 C.F.R. § 3.303(b). In the alternative, if a chronic disease was not shown in service, but manifested to a degree of 10 percent or more within some specified time after separation from active service, such disease shall be presumed to have been incurred or aggravated in service, even if there is no evidence of such disease during service. 38 U.S.C. §§ 1112, 1137 (2012); 38 C.F.R. § 3.307(a)(3) (2019). The application of these presumptions operates to satisfy the "in-service incurrence or aggravation" element and establish a nexus between service and a present disability, which must be found before entitlement to service connection can be granted. Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been "shown in service," there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in-service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. Impaired hearing will be considered a disability when, in pertinent part, 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. 38 C.F.R. § 3.385. Service connection for a current hearing disability is not precluded where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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). If the evidence is competent, the Board must then determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The determination as to whether the requirements for service connection are met is based on analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 C.F.R. § 3.102. If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Gilbert, 1 Vet. App. at 55. Entitlement to service connection for bilateral hearing loss The Veteran contends that his bilateral hearing loss had its onset in, was aggravated or is otherwise attributable to service. The evidence reflects that the Veteran has bilateral hearing loss for VA purposes. During a September 2016 VA hearing loss examination, audiometric testing yielded the following hearing thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 15 25 35 50 70 LEFT 10 15 40 50 75 The Veteran’s speech recognition score was 100 percent for the right ear and 96 percent for the left ear. These hearing thresholds and speech recognition scores establish a current disability of bilateral sensorineural hearing loss as defined under 38 C.F.R. § 3.385. Thus, the Veteran has satisfied the first element of service connection. The second element of service connection requires medical evidence, or in certain circumstances, lay testimony, of in-service incurrence or aggravation of an injury or disease. In this instance, the Veteran's STRs show normal hearing on induction with thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 0 0 -10 LEFT 5 0 -5 15 10 The Veteran’s separation examination did not include audiometric evaluation. However, the Board notes that the VA has conceded hazardous noise exposure in an earlier grant of service connection for tinnitus. In addition, the Veteran’s military occupational specialty (MOS) in service was heavy truck driver and he performed his duties without hearing protection. After service the Veteran returned to school and was employed as a Certified Public Accountant for twenty-nine years and as a legislative auditor for 10 years. He denies occupational or recreational noise exposure or a family history of hearing loss. The Veteran’s Statement in Support of Claim indicates that for the 14 months he served in Vietnam he drove over 25,0000 miles in an “extremely loud” five-ton tracker vehicle with a trailer. As this vehicle confronted snipers and was ambushed along its route, the Veteran and a second soldier took turns riding in the passenger seat firing an M60 machine gun and shotgun. At times, bombs exploded close to the vehicle. The Veteran recalled that after separation from service his family told him that he spoke very loudly although he did not realize at the time that loud speaking was a symptom of hearing loss. VA received a lay statement from the Veteran’s sister in January 2021 indicating that when the Veteran returned from service, he was speaking louder than she recalled before service and remembers having to ask him questions more than once. In June 2016 the Veteran underwent hearing evaluation for eligibility for hearing aids. The Veteran gave a history of constant bilateral tinnitus that began with an incident in which he lost hearing for a day and a half after a weapon was fired near his head in Vietnam. Accordingly, the Board finds that the second element of service connection is satisfied given the evidence that the Veteran had hazardous noise exposure during his military service. The third element of service connection requires medical evidence of a nexus, or link, between the current disability and the in-service disease or injury. In this regard, in the September 2016 VA examination, the VA audiologist declined to offer an opinion as to whether there was a relationship between the Veteran’s hazardous noise exposure and his current hearing disability given the lack of an audiometric examination on separation. However, as noted above, service connection for a current hearing disability is not precluded if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his hearing disability. See Hensley, 5 Vet. App. 157. In this instance, the Veteran and his sister are competent to provide his observations of loss of hearing in service and continuing after he separated from service. See Jandreau, 492, F. 3d, 1372. There is no evidence that contradicts these statements. As the Board finds that the Veteran’s reports to be credible and consistent with the character of his service in Vietnam, the evidence is at least evenly balanced as to whether his hearing loss had its onset in service. The relative equipoise of the evidence must be resolved in favor of the Veteran and a nexus between the current hearing loss disability and hazardous noise exposure, with hearing loss in service, is established on a presumptive basis. Thus, the third requirement for service connection is satisfied. Based on the foregoing, service connection for bilateral hearing loss is established on a presumptive basis. 38 C.F.R. §§ 3.303(b), 3.309(a). KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Adams Hill, 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.