Citation Nr: 21016196 Decision Date: 03/22/21 Archive Date: 03/22/21 DOCKET NO. 15-18 489 DATE: March 22, 2021 ORDER Entitlement to service connection for right ear hearing loss is granted. FINDING OF FACT Resolving all reasonable doubt in the Veteran’s favor, it is reasonably shown that his right ear hearing loss manifested in service with continuity of symptomology after separation. CONCLUSION OF LAW The criteria for right ear hearing loss has been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.85; 3.10. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served from in the Vietnam War era from December 4, 1968 to September 1, 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota. In June 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In August 2020, the Board remanded the matter for an audiological examination regarding the nature and etiology of his bilateral hearing loss pursuant to McClendon v. Nicholson, 20 Vet. App. 79. 81 (2006). In September 2020, the Veteran was provided an examination in substantial compliance with remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). During the course of this appeal, the RO granted service connection for left ear hearing loss. See October 2020 Rating Decision. Therefore, the matter of left ear hearing loss is not before the Board. However, as this is not a full grant of the Veteran’s claim for bilateral hearing loss, the Board will review entitlement to service connection for right ear hearing loss. 1. Entitlement to service connection for right ear hearing loss The Veteran contends that his hearing loss is due to hazardous noise exposure while on an aircraft carrier during service. See February 20, 2014 Sanford Bismark Hearing Center Progress Note; see also June 2020 Board Hearing transcript, pg. 3. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship also known as a “nexus” between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). For chronic diseases such as organic diseases of the nervous system, which includes both sensorineural hearing loss and tinnitus, a showing of continuity of symptomatology may serve to satisfy the nexus element. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The absence of in-service evidence of a disability during service is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Service connection may be granted for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service medical findings of hearing loss, and a medically sound to attribute the post-service findings to the injury in service. A “claimant may establish direct service connection for a hearing disability initially manifest several years after separation from service on the basis of evidence showing that the current hearing loss is causally related to injury or disease suffered in service.” Hensley v. Brown, 5 Vet. App. 155, 164 (1993). The VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms that supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any frequencies at 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when auditory thresholds for at least three of the frequencies at 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. Turning to the evidence, regarding the first Shedden element, the Veteran must show evidence of a present disability. In September 2020, a VA examination showed hearing loss for VA purposes in both ears. 38 C.F.R. § 3.385. The VA examiner diagnosed sensorineural hearing loss in both ears. See September 2020 VA Examination, pg.4. The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: Sept 2020 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 30 30 45 65 42.5 96% LEFT 30 65 85 80 65 84% Thus, the first element is met. Regarding the second Shedden element for service connection, the Veteran must show evidence of an in-service incurrence or aggravation. The Veteran reported exposure to hazardous noise while in service on the flight deck of an aircraft carrier. See June 2020 Board Hearing Transcript. The Veteran’s MOS of airman is consistent with acoustic trauma and exposure to hazardous noise and acoustic trauma has been conceded by VA. See October 2020 Left Ear Hearing Loss Rating Decision Narrative, pg.2. Thus, the second element is met. Regarding the third Shedden element for service connection, there Veteran must show evidence of a nexus between the disability and in-service disease or injury. Weighing against the claim is a September 2020 VA examiner’s negative nexus opinion who reasoned that although there was a significant inservice threshold shift, separation thresholds were “well within normal limits.” September 2020 VA Examination, pg. 4. The examiner reasoned that work exposure and “occasional prairie dog hunting” were the likely the cause of his right ear hearing loss. Id. However, an absence of evidence of hearing loss in service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford, 3 Vet. App. at 89. Particularly, where there is credible evidence of acoustic trauma due to noise exposure in service, post-service medical findings of hearing loss, and a medically sound basis upon which to attribute the post-service findings to an inservice injury. In this case, acoustic trauma is conceded and there is a post-service finding of hearing loss. Moreover, audiometric testing at separation shows thresholds of greater than 20 decibels at higher thresholds indicating a degree of hearing loss. See Hensley, 5 Vet. App. at 157 (explaining normal hearing thresholds are 0 to 20 decibels; higher threshold levels indicate a degree of hearing loss). The Veteran’s enlistment and separation pure tone thresholds, in decibels, were as follows: Dec 1968 HERTZ 1000 2000 3000 4000 6000 RIGHT 0 0 n/a 0 n/a LEFT 0 0 n/a 25 n/a Dec 1969 HERTZ 1000 2000 3000 4000 6000 RIGHT 5 5 15 50 65 LEFT 5 5 5 15 20 While the Veteran’s enlistment and separation audiograms do not reveal hearing loss as defined by VA regulations, they do reveal a threshold shift relative to his audiometric reading at separation. See id. Thus, the 2020 examiner’s conclusion that the separation examination was well within normal limits is incorrect. See id. Weighing in favor of the claim is a February 2014 Sanford Hospital audiology examination and opinion by Dr. B.N. stating that his hearing loss is highly likely related to inservice noise exposure. Also weighing in favor of the claim are lay statements alleging that his currently diagnosed hearing loss is related to service and that he has had symptoms of hearing loss ever since inservice noise exposure. VA has conceded inservice hazardous noise exposure. The Board finds the Veteran credible, and his lay statements probative. In light of the foregoing, the Board finds that service connection for right ear hearing loss is warranted as the competent and probative evidence of record show a current disability, in-service noise exposure, medical evidence of a degree of inservice hearing loss, and medical evidence of a nexus between the two. The Board finds that the evidence is at least in equipoise; reasonable doubt is resolved in the Veteran’s favor. See Gilbert v. Derwinski, 1Vet. App. 49 (1990). Therefore, the claim for service connection for right ear hearing loss is granted. 38 U.S.C. §5107(b); 38 C.F.R. §3.10. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. McKenzie, 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.