Citation Nr: 21015712 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 13-20 674 DATE: March 18, 2021 ORDER Service connection for bilateral hearing loss is granted. FINDING OF FACT The evidence is at least in equipoise that the Veteran has experienced bilateral hearing loss symptoms since he separated from service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1112, 1113, 1154(b), 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a), 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from October 1964 to June 1967. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Acting Veterans Law Judge (VLJ) at a videoconference Board hearing in August 2013; a transcript is of record. This matter was subsequently remanded by the Board in July 2017 and January 2019 for additional development. The matter has now returned to the Board for appellate consideration. The Board finds there has been substantial compliance with its prior remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). A medical opinion and addendum were obtained. Additionally, in an August 2020 rating decision, the RO granted the Veteran’s claim for service connection for a bilateral eye disability. As this grant represents a full grant of the benefit sought, this issue is no longer on appeal. Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must generally be 1) evidence of a current disability; 2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and 3) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability, which is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused or aggravated by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 43, 448-49 (1995). Service connection for certain diseases may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). A nexus between a current disability and an in-service injury or event may be established by evidence of continuity of symptomatology, if the condition is a chronic disease enumerated under 38 U.S.C. § 1101. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Bilateral hearing loss (organic diseases of the nervous system) is a chronic disease. See 38 U.S.C. §§ 1101, 1112. In a claim of service connection for impaired hearing, demonstration of the first Shedden element, that is the existence of a current disability is subject to the additional requirements of § 3.385, which provides that service connection for impaired hearing shall not be established until the hearing loss meets pure tone and/or speech recognition criteria. Under this regulation, hearing status will be considered a disability for the purposes of service connection when the auditory thresholds in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies 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 Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 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, 57-58 (1990). Entitlement to service connection for bilateral hearing loss. The Veteran asserts service connection for bilateral hearing loss to include as due to in-service noise exposure. The question for the Board is whether the Veteran has a bilateral hearing loss disability for VA purposes that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes the Veteran has a current diagnosis of bilateral hearing loss for VA purposes, and the evidence is at least in equipoise that he has had hearing loss since he separated from service. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303. The Veteran has a current diagnosis of bilateral hearing loss for VA purposes as reported at the October 2017 examination. As such, the first element of service connection is met. The Board found in its July 2017 remand that in-service noise exposure had been demonstrated. The Veteran has participated in multiple examinations for his bilateral hearing loss claim. However, the Board previously found the June 2010 examination insufficient in its July 2017 remand. Additionally, the Board later determined the October 2017 examination did not address the Veteran’s testimony regarding his in-service noise exposure and that he had had hearing loss symptoms since service. A nexus opinion, using acceptable clinical evidence (ACE), was obtained in June 2020. The audiologist again provided a negative nexus opinion stating that there was no evidence of noise injuries as there were no significant changes in hearing thresholds from the entrance to separation examination. Additionally, she reported the audiogram is the gold standard for identifying noise injuries, and in the absence of objectively verifiable noise injury during service, there was no association between hearing loss and noise exposure. A negative secondary opinion was provided regarding his bilateral hearing loss and tinnitus. An addendum was provided in July 2020. The same audiologist considered the Veteran’s lay statements but stated that there was objective evidence that points to a lack of change in hearing from entrance and separation examinations. However, concerning the reported objective evidence (particularly the entrance and separation examinations), the June 2010 audiologist expressed doubts if the separation examination was reliable as it reported better hearing than at the Veteran’s entrance examination. The Board finds the June 2020 opinion and July 2020 addendum to have little probative value. The examiner discounts the Veteran’s lay statements which the Board has found credible. Also, the Board has previously found in-service noise exposure. The Veteran’s military occupational specialty in service was a light weapons infantryman; and he earned, in pertinent part, a Combat Infantryman Badge. The provisions of 38 U.S.C. § 1154 (b) state, in pertinent part, that in any case where a veteran is engaged in combat during active service, lay or other evidence of service incurrence of combat related disease or injury will be considered sufficient proof of service connection if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence during service, and, to that end, VA shall resolve every reasonable doubt in favor of the veteran. Yet, the examiner finds that there was no noise exposure. See, e.g., Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (stating that the absence of in-service evidence of hearing disability is not fatal to a claim of service connection for hearing loss). Additionally, a medical opinion based solely on the absence of documentation in the record is inadequate and a medical opinion is inadequate if it does not take into account the Veteran’s reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). Additionally, while she relies on the entrance and separation examinations as the focus of her opinion, the June 2010 examiner expressed doubts regarding the reliability of the separation examination. As such, the Board finds little probative value for the June and July 2020 nexus opinions. The Veteran testified at a Board hearing that he has had hearing loss symptoms since service. He explained that they were initially only intermittent but had become constant more recently. The Board acknowledges that the Veteran has also reported that his hearing loss developed years after service. However, when resolving reasonable doubt in favor of the Veteran, the Board finds that his Board hearing testimony explains that his hearing loss symptoms began immediately after service, but likely increased in severity to a more noticeable degree afterwards. As noted above, the Veteran reports hearing loss in the combat environment which, pursuant to 1154(b), is accepted as true without the need for actual treatment records. The Board finds the Veteran competent and credible to describe his hearing impairments and when they began. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). After review of the competent and probative evidence, the Board finds the evidence is at least in equipoise that the Veteran’s bilateral hearing loss for VA purposes began since he exited service. In this regard, the Board acknowledges the negative nexus opinions. However, for the reasons as reported above, the Board finds they are entitled to little probative value. The Veteran has testified that he has had hearing loss symptoms since he exited service. At the Board hearing, he explained that his symptoms initially were intermittent, but worsened more recently. As previously found, the Veteran is credible. As the positive and negative evidence of record have strengths and weakness, the Board finds that they balance out. 38 C.F.R. § 3.102; see Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (noting that the benefit of the doubt rule is a unique standard of proof, and “the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding such benefits”). As such, the Board finds the evidence is at least in equipoise that the Veteran’s current bilateral hearing loss for VA purposes is due to noise exposure during active duty. Therefore, service connection for bilateral hearing loss is warranted. 38 C.F.R. § 3.102, 3.303. Sarah B. Richmond Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Morales, 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.