Citation Nr: 21014694 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 17-16 775 DATE: March 15, 2021 ORDER Service connection for bilateral hearing loss is granted. FINDING OF FACT Resolving all reasonable doubt in the Veteran’s favor, the Veteran’s bilateral hearing loss cannot be satisfactorily disassociated from his service or his service-connected tinnitus. CONCLUSION OF LAW Resolving all doubt in the Veteran’s favor, the criteria for service connection for a bilateral hearing loss disability have been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310, 3.385, 3.655. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from August 1976 to August 1980. This mater is before the Board of Veterans’ Appeals (the Board) on appeal from the October 2016 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The rating decision, inter alia, denied service connection for bilateral hearing loss. The Veteran’s Notice of Disagreement (NOD) was received in February 2017. The Statement of the Case (SOC) was issued in March 2017, and the Veteran’s VA Form 9, substantive appeal to the Board was received the same month. In December 2019, the Veteran and his representative appeared before the undersigned Veterans Law Judge (VLJ) for a Board hearing. The transcript is of record. The claim was remanded for further development and adjudication in January 2020. Entitlement to service connection for bilateral hearing loss. At the December 2019 hearing, the Veteran testified that his bilateral hearing loss is a result of his in-service noise exposure. He asserted that the VA examination in this matter was inadequate because it incorrectly linked the Veteran’s current hearing loss to post-discharge occupational noise exposure from working in maintenance, parks, and as a truck driver. The Veteran testified that after discharge, he worked in bathroom maintenance and electrical maintenance, which did not entail operating machinery or noise exposure. With respect to in-service noise exposure, the Veteran testified that he was stationed aboard a ship, where he spent most of the time below deck near the engine. The Veteran testified that he worked near ballast compressors and generators which were confined to small spaces and emitted a lot of noise. The Veteran indicated that he was issued hearing protection but because his duties required him to use headphones, he was not able to use hearing protections. The Veteran also testified that while he was near the ballast compressors, he was standing in a confined box, where sound would not travel out of. He testified that he was exposed to noise and pounding and began experiencing tinnitus in service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection requires competent 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 disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a); sensorineural hearing loss is a qualifying chronic disease. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Likewise, service connection is warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). A Veteran’s lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. §§ 3.303(a), 3.159(a); See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Decreased hearing acuity is the type of symptom or disability capable of observation by a lay person. See also Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). A layperson is competent to report on the onset and continuity of his current symptomatology. See 38 C.F.R. § 3.159 (a); see also Layno v. Brown, 6 Vet. App. 465, 470 (1994). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology.” Savage v. Gober, 10 Vet. App. 488, 496 (1997) (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). At the outset, pursuant to the January 2020 Board remand, the September 2016 VA medical opinion was inadequate as it did not address the Veteran’s contentions regarding his post-discharge employment and his in-service noise exposure. Moreover, following the September 2016 VA examination, the Veteran was granted service connection for tinnitus. As a result, the matter was scheduled for an additional VA examination. A review of the file reveals that the Veteran did not attend the scheduled examination. A September 2020 VA Form 27-0820 indicates that the Veteran refused a VA hearing loss examination and was left several detailed voicemails with respect to not attending the examination. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record.  See 38 C.F.R. § 3.655. As such, the claims will be based on the available evidence of record. The Veteran has a current bilateral hearing loss disability for VA purposes. 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 (dB) 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 threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). On the authorized audiological evaluation in September 2016, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 6000 8000 RIGHT 25 30 40 50 75 85 95 LEFT 20 20 30 60 85 85 80 Speech discrimination scores of 90 percent in the right ear and of 92 percent in the left ear were noted. While the September 2016 VA medial opinion is inadequate, the objective medical testing illustrates that the Veteran has a current bilateral hearing disability for VA purposes. The record establishes that the Veteran was subject to noise exposure during his active military service. The Veteran’s DD 214 reflects that he served aboard the USS Anchorage and completed training in small boat engine operation, anchor windlass operation, and b&a crane operation. Thus, the Veteran’s military service records illustrate that the nature of his service is consistent with his testimony regarding the noise exposure he experienced in service. In other words, the Veteran testified that he worked below deck at or near engines and heaving machinery in enclosed spaces, and his military personnel records confirm his contentions. His statements have been found competent, credible and consistent with the circumstances of his service. See 38 U.S.C. §1154 (a); 38 C.F.R. §3.303 (a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). Therefore, the Veteran has met the in-service injury or event requirement. The remaining issues with whether hearing loss is related to the in-service noise exposure. In this case, the Veteran has been awarded service connection for tinnitus, which he contended began in service. The Veteran’s tinnitus is service-connected based on the same in-service noise exposure. The September 2016 VA examiner indicated that the Veteran’s tinnitus is at least as likely as not a symptom associated with hearing loss and indicated that tinnitus is a known symptom associated with hearing loss. While the September 2016 VA medical opinion indicating the Veteran’s hearing loss is not related to service is inadequate for failure to consider the Veteran’s competent reports, the remainder of the VA examination report is afforded probative value. Specifically, the conclusion that the Veteran’s tinnitus is a symptom associated with hearing loss is supported by the record. The Veteran reported noise exposure and onset of tinnitus in service. He was awarded service connection for tinnitus based on that noise exposure. It is inconsistent to determine that the same noise exposure was sufficient to cause tinnitus but not hearing loss, especially given that tinnitus is related to hearing loss. Moreover, the Veteran reported that he did not work with heavy machinery or was exposed to noise after discharge. Therefore, the evidence is at least in relative equipoise as to whether the Veteran’s bilateral hearing loss is related to service and his service-connected tinnitus. With all reasonable doubt being resolved in the Veteran’s favor, service connection is warranted. Of note, while the Veteran did not participate in additional VA examination in this case, the claim has been decided on the available evidence of record. As previously noted, the available evidence of record establishes a current disability and an in-service injury. Moreover, the evidence is in relative equipoise as to whether the Veteran’s hearing loss is related to his service and his service-connected tinnitus. In essence, the medical and lay evidence of record indicates that the Veteran’s hearing loss disability cannot be satisfactorily disassociated from his service-connected tinnitus which has been linked to the same in-service noise exposure. Therefore, service connection for a bilateral hearing loss disability is warranted. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kuksova, Kseniya 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.