Citation Nr: 21021232 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 20-15 182 DATE: April 12, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, he has experienced bilateral hearing loss since separation from service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 5103(a), 5103A, 1131, 1112, 1113; 38 C.F.R. §§ 3.303, 3.304, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1958 to March 1960. This matter comes before the Board of Veterans’ Appeals (BVA or Board) from a December 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a hearing before the Board but withdrew his request in February 2021. Entitlement to service connection for bilateral hearing loss. The Veteran claims entitlement to service connection for bilateral hearing loss. Specifically, he asserts that during active duty, he was exposed to significant noise during basic training and experienced hearing symptoms which he dismissed at the time due to his young age. The Veteran asserts his hearing loss has continued to date. 38 C.F.R. § 3.385 does not preclude service connection for a current hearing loss disability where hearing was within normal limits on audiometric testing at separation from service. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Rather, when audiometric test results at a Veteran’s separation from service do not meet the requirements of 38 C.F.R. § 3.385, a Veteran may nevertheless establish service connection for current hearing disability by submitting medical evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). Where the requirements for hearing loss disability pursuant to 38 C.F.R. § 3.385 are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post-service test results meeting the criteria of 38 C.F.R. § 3.385. Hensley, 5 Vet. App at 155. If the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflect an upward shift in tested thresholds while in service, though still not meeting the requirements for “disability” under 38 C.F.R. § 3.385, and (b) post service audiometric testing produces findings which meet the requirements of 38 C.F.R. § 3.385; then the rating authorities must consider whether there is a medically sound basis to attribute the post service findings to the injury in service, or whether these findings are more properly attributable to intervening causes. Id. at 159. The Board has carefully reviewed the evidence of record and finds that the Veteran’s symptoms of bilateral sensorineural hearing loss have been chronic and continuous since service. Thus, resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for bilateral hearing loss have been met. See 38 C.F.R. § 3.303 (b) (service connection may be granted based on chronicity or continuity of symptomatology for a disability which is due to a disease enumerated on the list of chronic diseases in 38 C.F.R. § 3.309 (a), including sensorineural hearing loss). As an initial matter, the Board finds the Veteran’s statements regarding his in-service acoustic trauma credible; according to his DD-214, the Veteran was trained as an armor specialist. Basic training for this military occupation specialty (MOS) would have involved small arms training, as described in the Veteran’s statements, often without adequate hearing protection. Thus, the Board concedes exposure to hazardous noise for purposes of establishing an in-service event. The Board acknowledges that the Veteran’s service medical records from this period do not confirm or deny experiencing hearing loss in service, nor do they show a threshold shift. Nonetheless, the Veteran has provided consistent testimony about the type of noise to which he was exposed in service, how loud it was, and how many times. Specifically, in his June 2018 notice of disagreement and his March 2020 Form 9, the Veteran recalled that after he qualified for firearm training, he and two other trainees were assigned to assist trainees who had never fired a gun before. They were ordered to lie down under the muzzle of other trainees’ firearms to evaluate their sight picture and trigger posture. After this happened, the Veteran and his companions were unable to hear for several days. However, they avoided going to sick call because they were led to believe that if they did so, they would be recycled through basic training. While the Veteran’s service treatment records do not confirm or deny his experiencing hearing loss in service, the Veteran gives a sufficiently detailed account of his ordeal for a finding of in-service incidence of hearing loss. Thus, while the AOJ noted the absence of an appreciable tonal threshold shift in service, the Board still finds that the Veteran was exposed to hazardous noise in service. Next, audiological evaluations performed since active duty reflect findings which meet the requirements of 38 C.F.R. § 3.385. 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 of the frequencies 500, 1000, 2000, 3000, or 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, 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. Although the Veteran was unable to attend scheduled VA examinations, he submitted private audiological evaluations. In the role of fact finder, the Board may interpret the graphical data. See Savage v. Shinseki, 24 Vet. App. 249 (2011) (noting the Board may interpret results from a private audiometric graph, if it felt it had the expertise, and holding that the Board may not ignore such private audiometric test results that are of record). Specifically, the Veteran’s November 2001 non-VA audiological evaluation documents right and left ear hearing loss of over 26 dB at 1000 Hz, 60 dB at 2000 Hz, and approximately 65 dB at 3000 Hz and 4000 Hz. Further examinations through October 2017 show somewhat worsening hearing over time. Thus, the Veteran has a current disability of hearing loss. Finally, the evidence demonstrates competent and credible statements of hearing loss in and since service. Specifically, at his first non-VA evaluation of record, the Veteran complained to his physician of hearing-related symptoms since age 20, when he was in military service. He did not report it because he was led to believe that if he went to sick call during basic training, he would be recycled, or held back, to basic training. The Board finds this statement credible, as the Veteran, having successfully qualified for firearm training, would want to continue with basic training and the rest of his service. Therefore, the Board notes that while there is no objective evidence available to determine whether the Veteran experienced any hearing deficits during service; there is competent and credible lay evidence that the Veteran experienced hearing loss during and after service. The Board finds no adequate basis to reject the favorable evidence of record that indicates his hearing loss had an onset during service and has continued to date, based on a lack of credibility or probative value. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Evans v. West, 12 Vet. App. 22, 26 (1998). Accordingly, given the Veteran’s acute exposure to very loud noise in service, the presence of current hearing loss for VA purposes, and competent and credible statements of continuity, it is at least as likely as not that the Veteran’s bilateral hearing loss is due to service. The Court of Appeals for Veterans Claims reiterated in Wise that “[b]y requiring only an ‘approximate balance of positive and negative evidence’ to to prove any issue material to a claim for veterans benefits, 38 U.S.C. § 5107 (b), the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding such benefits.” Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (citing Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990)). Accordingly, the Board finds that service connection for bilateral hearing loss is warranted. L. ANDERSEN Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Z. Maskatia