Citation Nr: 21015610 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 15-18 717 DATE: March 17, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT The Veteran’s bilateral hearing loss is etiologically related to service. CONCLUSION OF LAW The criteria to establish service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1968 to June 1970. This matter comes before the Board of Veterans Appeals (Board) on appeal from a rating decision issued in June 2013 by a Department of Veterans Affairs (VA) Regional Office (RO or AOJ). In July 2016, the Veteran testified at a Video Conference Board Hearing before the undersigned Veterans Law Judge. The transcript is of record. When the above matter was last before the Board in July 2020, the Veteran also had a pending claim for entitlement to service connection for tinnitus. Both issues were remanded for further development. After this development, the AOJ granted service connection for tinnitus in a January 2021 rating decision. This constitutes a full grant and the issue of entitlement to service connection for tinnitus is no longer before the Board. Entitlement to Service Connection for Bilateral Hearing Loss The Veteran contends that his bilateral hearing loss is the result of loud noise exposure during active duty service. He states he was exposed to 8-inch howitzer cannons being fired while performing his military duties as a cook. He says he would set up the mess tent close to the soldiers who manned the cannons and that he would take food into the field when the cannons were being fired. He adds that he did not have any type of hearing protection. See March 2014 notice of disagreement. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). To establish a right to compensation for a present disability, a Veteran must 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303 (b), claims for chronic diseases enumerated in 38 C.F.R. § 3.309 (a) benefit from a relaxed evidentiary standard. See Walker v. Shinseki, 708 F.3d 1331, 1339 (Fed. Cir. 2013). Sensorineural hearing loss is such a disease. To show a chronic disease in service, the record must contain a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Continuity of symptomatology is required only where the condition noted during service or in the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303 (b). Regarding Holton element one, the January 2013 and August 2019 VA examiners noted the Veteran had normal hearing, bilaterally. Both examiners indicated the pure tone thresholds could not be tested in the 500Hz to 8000Hz frequencies, noting “CNT” under each frequency. For purposes of applying the laws administered by VA, impaired hearing loss will be considered a disability when 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. On remand, the Veteran was afforded a new VA audiological examination in December 2020, wherein the examiner similarly noted diagnoses of normal hearing, bilaterally. However, testing revealed pure tone thresholds of 40 decibels or greater in the 3000 and 4000 Hertz frequencies, bilaterally. The examiner stated that diagnoses of normal hearing, bilaterally, was “only because your format required a selection to ‘save’ and ‘submit.’” He added “I cannot quantify degree of hearing because of the malingering.” The examiner did not offer explanation of what actions of the Veteran constituted “malingering.” Thus, resolving reasonable doubt in favor of the Veteran, and as there is some suggestion that the Veteran does experience some level of hearing loss, the Board finds that the Veteran has a current bilateral hearing disability under 38 C.F.R. § 3.385. The second Holton element is also met. During his July 2016 testimony, the Veteran testified that he was associated with an artillery unit during service. This in-service noise exposure has been established as consistent with the types, places, and circumstances of the Veteran’s active service. Accordingly, the crux of this case centers on whether the Veteran’s bilateral hearing loss is related to service. The Veteran’s April 1968 enlistment examination indicated that the Veteran’s ears and hearing were normal. His April 1970 separation examination indicated threshold shifts in the 500Hz to 2000 Hz frequencies. During his July 2016 hearing, the Veteran testified that he was having problems with his hearing at the time of his separation from service. He reflected that he “just had to deal with it” because he had to get a job. On examination in December 2020, the Veteran stated that he has to ask people to repeat themselves a lot and he also needs to always face someone because he reads lips. VA opinions obtained in January 2013 and August 2019 weigh against the Veteran’s claim as both examiners indicate the Veteran has normal hearing, bilaterally. The December 2020 opinion also weighs against the Veteran’s claim finding the Veteran’s test results to be unreliable, and, therefore, no opinion could be provided on etiology of “a possible hearing loss” or whether such was due to hazardous military noise exposure. After a review of the evidence, however, the Board finds that service connection for bilateral hearing loss is warranted. The Veteran is competent to describe what he experienced in service. Competent lay evidence means 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). The Board also finds the Veteran’s statements with respect to his continuity of symptomatology to be credible. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In making this determination, the Veteran has confirmed in-service noise exposure and there is evidence of a threshold shift in service. The Veteran further testified that he had hearing problems at the time of his separation from service. Following service, the Veteran testified that he had to deal with his hearing loss in order to obtain a job. On examination in December 2020, he stated that he has to face people when talking because he reads lips. There is no persuasive evidence of record indicating that the Veteran’s statements are not credible. Therefore, in light of the Veteran’s established in-service noise exposure, his current bilateral hearing loss disability for VA purposes, and his competent and credible reports of a continuity of symptomatology of hearing problems since service, the Board finds that the evidence weighs in favor of the Veteran’s claim. Regarding the medical opinions of record, the Board has given little probative weight to the January 2013 and August 2019 examiners’ conclusions that the Veteran has normal hearing, bilaterally. In this regard, the Board has found the Veteran has a current bilateral hearing disability under 38 C.F.R. § 3.385. The Board has also given little probative weight to the December 2020 examiner’s conclusion that etiology opinion could not be provided. In this regard, the examiner based his conclusion on inability to quantify the degree of the Veteran’s hearing loss even though pure tone thresholds at each of the specified frequencies for both the Veteran’s right and left ears are noted in the examination report. Moreover, because sensorineural hearing loss is a chronic disease under 38 C.F.R. § 3.309 (a), an award of service connection is appropriate solely based on evidence of continuity of symptomatology. Walker, 708 F.3d at 1336-40. In view of the foregoing, and in consideration of the credible lay statements, the Board finds that the evidence is at least in equipoise regarding the question of whether the Veteran’s current bilateral hearing loss is the result of military service. In cases where the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Smith, 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.