Citation Nr: 21021015 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 17-51 011 DATE: April 9, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, his bilateral hearing loss is related to noise exposure during active duty service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38C.F.R. §§3.102, 3.159, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran has active duty service in the United States Marine Corps from June 1978 to July 1998 including two tours of duty in the Persian Gulf War. This case comes before the Board of Veterans’ Appeals (Board) on appeal of an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Jurisdiction of the claim was subsequently transferred to Winston-Salem, North Carolina. This case was previously before the Board in November 2018, where the issue on appeal was remanded for further evidentiary development. As a prerequisite to further adjudication, a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. The Board observes substantial compliance with the remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Generally, to establish service connection 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). 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. Hearing Loss The threshold for normal hearing is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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. 38 C.F.R. § 3.385. 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability 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, 5 Vet. App. 157. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Likewise, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be more persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b) (2019). Entitlement to service connection for bilateral hearing loss The Veteran contends that his bilateral hearing impairment had its onset in, was aggravated by or is otherwise attributable to service. After a review of the entire evidentiary record and considering the applicable legal criteria, the Board affords the Veteran reasonable doubt and grants service connection for bilateral hearing loss. The Veteran has a current bilateral hearing loss disability, as noted above, in accordance with 38 C.F.R. § 3.385. At the October 2019 VA examination, the examiner found that the Veteran has a current disability of a hearing loss impairment for VA purposes. Accordingly, the first requirement for service connection is satisfied. The second requirement for service connection, an inservice incurrence has also been satisfied. The Veteran provided a lay statement that over a period of many years his work with high frequency radios with a headset placed up against the ears was a cause of his hearing loss. In addition, twelve of his twenty years in service included the field artillery regiment in which he was firing large artillery that could be heard from miles away. The Veteran's DD Form 214 reflects that he served as a Radio Chief for 19 years and 5 months while in service which the Department of Defense associates with a moderate probability of hearing loss. In addition, the Veteran received the Expert Rifle Badge and Sharpshooter Pistol Badge which are associated with highly probable noise exposure. As for the third required element for service connection, evidence of a nexus between the Veteran's bilateral hearing loss and service, the Board notes the evidence of record consists of credible statements from the Veteran and negative medical opinions regarding the etiology of the Veteran's bilateral hearing loss. Private treatment records in August 2008 reflect that the Veteran had a normal tympanic membrane on otoscopic examination. The Veteran underwent a VA compensation examination in February 2009 for bilateral hearing loss. He reported that the condition had existed for 15 years. The Veteran reported noticing some minor difficulties hearing when serving as a communications chief with an artillery unit. He discussed recurrent tinnitus that had its onset when a bomb exploded nearby which caused a great deal of ringing in his ears. After service he worked in law enforcement for 10 years and has used power tools with hearing protection. His hearing thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 15 10 10 LEFT 10 10 15 10 10 The examiner found that the Veteran had normal hearing for VA purposes. In October 2010 the Veteran was treated at Camp Lejeune for otitis media of the right ear. VA treatment records from January and February 2016 show that a right ear cholesteatoma was ruled out after the Veteran was seen by an ENT specialist for his complaints of hearing loss. Visits between July 2016 through October 2019 indicate that the Veteran had been assessed as having impaired hearing warranting hearing aids. The Veteran disclosed that hearing protection in service was incomplete during his artillery noise exposure. He was having difficulty with one-on-one and group conversations as well as understanding the television and telephone conversation. The Veteran underwent a VA compensation examination for hearing loss in June 2017. HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 20 20 15 LEFT 20 20 15 10 15 Speech recognition scores were 100 percent for the right ear and 96 percent for the left ear. The examiner found that the Veteran had normal hearing without a permanent positive threshold shift caused by military service. The Veteran underwent VA compensation examination for hearing loss in October 2019 which demonstrated pure tone thresholds in decibels as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 70 60 65 70 65 LEFT 70 70 75 70 65 Speech recognition scores were 72 percent for the right ear and 96 percent for the left ear. The Veteran reported that he is functionally impaired in that he has difficulty hearing complete sentences and attempts to fill in words to understand conversation. The Veteran reported being exposed to loud noises from pistol/rifle range/grenade range/mark 19, communication noises, handset, artillery, 105s, M-198s, 8" guns, and 175 guns. After military service in 1998 the Veteran reported exposure to loud noises from the pistol range. The Veteran is service-connected for tinnitus which began in 1984 while firing large artillery. The examiner reported audiograms showing normal hearing bilaterally in June 2017. In January 2016, the Veteran was tentatively diagnosed with cholesteatoma and hearing loss after experiencing ear popping and hearing loss however, after removing cerumen from the tympanic membrane the Veteran had improved hearing. The examiner concluded that it was less likely than not that the Veteran’s hearing disability was related to military noise exposure. As rationale, the examiner noted a significant permanent shift in hearing thresholds beyond test variability from enlistment to separation, which is objective evidence of no permanent auditory damage on active duty from conceded noise, was not found. There was no report of complaints or treatment for hearing decrease at the time of separation evaluation. Although noise exposure is conceded, there must be a nexus of auditory damage to relate current hearing loss to military noise and not another etiology. The evidence is against a nexus in this case therefore it is less likely than not that the hearing loss is related to military noise exposure. The Board notes that while there is no positive nexus opinion of record, the Veteran’s statements as to some minor hearing difficulty observable in his last three years of service and continuing are competent and credible. His military occupational specialties are associated with a moderate to high risk of hazardous noise exposure over a twenty-year period. In 2009 after completing 10 years of employment in law enforcement and corrections following separation from service, the Veteran was assessed as having normal hearing for VA purposes after audiometric testing. The Board notes that the examiners have not attributed the Veteran’s bilateral hearing loss to any intercurrent cause. As such, the evidence in favor and against a nexus between the Veteran’s current hearing disability and service is at least in relative equipoise. Therefore, the Board resolves all doubt in favor of the Veteran and finds that the Veteran's bilateral hearing loss was caused by his in-service noise exposure. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 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.