Citation Nr: 21021229 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 19-04 910 DATE: April 12, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT Resolving all doubt in the Veteran’s favor, the evidence of record shows that his bilateral hearing loss is related to his in-service noise exposure. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service with the Navy from January 1964 to December 1967. This matter is on appeal to the Board of Veterans’ Appeals (the Board) from a July 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified in a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the evidence of record. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). A December 2018 rating decision granted service connection for tinnitus. Therefore, this claim is no longer on appeal before the Board. Governing Law and Regulations Direct service connection can be established if the Veteran shows (1) the existence of a present disability, (2) an 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. 38 U.S.C. § 1110; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for chronic diseases listed in 38 U.S.C. § 1101 and 38 C.F.R. § 3.309(a) may be established on a presumptive basis if the chronic disease was shown as chronic in service; manifested to a compensable degree within a presumptive period, usually one year, after separation from service; or was noted in service with continuity of symptomatology since service. 38 U.S.C. §§ 1112, 1113; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a). While sensorineural hearing loss is not a condition listed under 38 C.F.R. § 3.309(a), organic diseases of the nervous system are listed as a disability subject to presumptive service connection. As discussed below, the Veteran's hearing loss disability has been described as sensorineural in nature; hence, the Veteran's hearing loss, to the extent it has been shown by the evidence as being disabling, may be considered for service connection under the presumptive provisions contained in 38 C.F.R. §§ 3.307 and 3.309. For the purposes of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Due consideration must be given to all pertinent medical and lay evidence in evaluating a claim for service connection for any disability. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). Competent lay evidence is any evidence that does not require the proponent to have specialized education, training, or experience. 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Lay statements can be considered competent to establish a diagnosis when the layperson is competent to identify the medical condition, reports a contemporaneous medical diagnosis, or describes symptoms which support a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Once evidence is deemed competent, the Board must determine whether such evidence is also credible. Layno v. Brown, 6 Vet. App. 465 (1994). When there is a proximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Factual Background and Analysis The Veteran contends he was exposed to loud noise for three and a half years working aboard a US naval ship. In February 2021, he testified his military occupational specialty (MOS) was storekeeper. The USS Altair was responsible for supplying the sixth fleet. He worked both above and below deck organizing supplies for various requisitions from the sixth fleet. He was exposed to noise from the operation of heavy mechanical elevators, heavy mechanical equipment like forklifts, and helicopters daily. He was provided hearing protection, but they frequently fell off because of his constant movement on the job. The Veteran testified that he could not tell if he had hearing loss in service. However, after his separation from service he noticed his mother telling him to turn the television down because it was too loud, he had difficulty hearing church services, and when he started school in 1968 he had to move to the front of the classroom to hear the instructors. During the Veteran’s January 1964 enlistment examination, his audiometry results were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 0 -10 -- 5 n/a n/a LEFT 0 -10 -- 0 n/a n/a The Veteran’s December 1967 separation examination showed normal clinical findings. A whisper test found his hearing was 15 out of 15 bilaterally. His June 1978 audiometry results were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 20 10 10 10 13 n/a LEFT 20 10 10 10 13 n/a In March 2017, the Veteran’s VA treatment records show him complaining of bilateral hearing loss. His audiometry results were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 40 45 60 75 55 n/a LEFT 40 55 65 75 59 n/a His speech recognition was 72 percent in the right ear and 76 percent in the left ear with CID W-22. Maryland CNC testing was not conducted at this time. The Board finds that the audiological examination in March 2017 shows the Veteran met the criteria for hearing loss under 38 C.F.R. § 3.385. Accordingly, the first element of service connection is satisfied. Review of the Veteran's service treatment records did not show complaints, treatment, or a diagnosis for hearing loss. A December 2018 rating decision granted service connection for tinnitus. This was based on the opinion of a VA examiner, who found a nexus between the Veteran’s tinnitus and his reported military noise exposure. Therefore, in-service noise exposure is conceded. Furthermore, the Board finds the Veteran to be a reliable historian as to his report of in-service noise exposure. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Based on the Veteran’s credible reports of exposure to loud noise in service, the second Shedden element has been met. Therefore, the question to be decided in the present appeal is whether the current bilateral hearing loss was caused by or the result of the Veteran’s active service. After resolving all reasonable doubt in favor of the Veteran, the Board finds service connection for bilateral hearing loss is warranted. In a July 2017 VA examination, the Veteran was diagnosed with bilateral sensorineural hearing loss. Testing revealed the Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 30 45 55 75 51 66 LEFT 35 50 65 75 56 66 The examiner opined it was less likely than not that the Veteran’s right ear hearing loss was caused by or a result of an event in service. Although the Veteran reported exposure to significant noise in service, examination showed hearing within normal limits through 6000 Hz. Additionally, his service treatment records were silent for any complaints of hearing loss, tinnitus, or signs of auditory dysfunction. The examiner opined it was at least as likely as not that his left ear hearing loss was caused by or a result of an event in military service. However, the rationale provided was the same as that used to support the negative nexus opinion for the right ear. The examiner provided an addendum opinion for the left ear in July 2017. He had accidentally checked “yes” in answering whether the left ear hearing loss was due to military service noise exposure. In his opinion, the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In a December 2018 VA examination, testing revealed the Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 30 45 60 80 54 94 LEFT 35 55 70 85 61 86 The examiner opined it was less likely than not that the Veteran’s bilateral hearing loss was caused by or a result of an event in military service. His January 1964 enlistment examination showed his hearing was within normal limits. The December 1967 separation examination was conducted using a whisper test, which is not valid for measuring hearing acuity. Additionally, his June 1978 examination showed hearing within normal limits and no significant shift. The Board acknowledges that the July 2017 and December 2018 VA examiners opined it was less likely than not that the Veteran’s bilateral hearing loss was caused by or a result of an event in service. The examiners’ rationales were based on no complaints, treatment, or a diagnosis for hearing loss in service. However, the absence of documented hearing loss in service is not fatal to a service connection claim for bilateral hearing loss. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). In June 2018, P.W., the Veteran’s wife, testified during his decision review officer (DRO) hearing to meeting her husband in 1990 and that it was obvious he had a hearing issue at that time. P.W. described how her husband asks her to talk to people on the phone for him because he cannot hear and how he uses headphones to watch television at a comfortable level. Following the DRO hearing, P.W. submitted a written statement. She reported holding a bachelor’s degree in Speech and Language Therapy and Audiology and a master’s degree in Speech and Language Therapy. She worked as a speech pathologist for over 30 years in the public school and geriatric setting with individuals having speech, language, and hearing deficits. P.W. opined the negative audiogram changes between the 1967 and 1978 were consistent with hearing trauma experienced in service. He served aboard the USS Altair and was exposed to continuous loud noise 24 hours a day. He was exposed to noise from helicopters, elevators transporting supplies, and the engine room next to the sleeping quarters. P.W. opined the constant high level of noise experienced by the Veteran 24 hours a day over his years of service accounts in a large part for his current severe hearing loss. P.W.’s medical background informs her description of his symptoms and their severity. She is competent and credible to report hearing issues she observed and information she was told by her husband. Overall, the statements from the Veteran’s wife were found highly probative. Having considered the Veteran’s credible reports, the Board concludes that there is at least an approximate balance of positive and negative evidence regarding the question of whether the Veteran’s bilateral hearing loss was incurred in or caused by his active service. Therefore, reasonable doubt is resolved in favor of the Veteran, and service connection for his bilateral hearing loss is granted. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.L. Byers 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.