Citation Nr: 21022180 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 15-31 207 DATE: April 15, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT Resolving all doubt in favor of the Veteran, his bilateral hearing loss is a result of acoustic trauma sustained during active service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1988 to May 1992, to include service in Southwest Asia. He was awarded the Combat Infantryman Badge, among other decorations. An August 2018 Board decision remanded the issue on appeal for further development. That development has been accomplished and the claim has now been returned to the Board for further action. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection will be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing, (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In this case, sensorineural hearing loss is listed among the “chronic diseases” under 38 C.F.R. § 3.309 (a). Therefore, 38 C.F.R. § 3.303 (b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303 (b). Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures pure tone threshold hearing levels (in decibels) over a range of frequencies (in hertz). Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The determination of whether a veteran has a disability based on hearing loss is governed by 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; when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 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. 1. Entitlement to service connection for bilateral hearing loss. The Veteran asserts that his bilateral hearing loss is etiologically linked to acoustic trauma he experienced while in active service. He specifically asserts that he was exposed to acoustic trauma in active service without consistent and adequate hearing protection. His DD Form 214 confirms he was deployed to Southwest Asia and that his military occupational specialty at that time was an infantryman. His DD Form 214 also confirms he was awarded the Combat Infantryman Badge. His in-service exposure to acoustic trauma is thus conceded. The Veteran has consistently maintained that he first noticed loss of hearing acuity in service and that he has experienced the same symptoms from that time to present. Service treatment records note that the Veteran had a slight hearing threshold shift noted on an April 1989 service examination, and an April 1989 audiogram noted the Veteran was routinely exposed to acoustic trauma. His service treatment records otherwise reflect no bilateral hearing loss. A May 2011 VA audiological examination report recorded pure tone thresholds for the Veteran’s right and left ear, in decibels, at 500, 1000, 2000, 3000, and 4000 Hertz (Hz) as follows: 15, 15, 15, 25, and 40 on the right, and 15, 15, 10, 25, and 25 on the left. Speech recognition scores using the Maryland CNC Test for the right ear was 100 percent and the left ear was 100 percent. The examiner opined that the Veteran did not have left ear hearing loss for VA purposes, and he opined that it was less likely than not that the Veteran’s right ear hearing loss was related to active service. As rationale, the examiner stated the Veteran had normal hearing noted during his service entrance examination and service discharge without audiologic injury reported. A May 2014 private physician statement opined that it was more likely than not that the Veteran’s bilateral hearing loss was related to acoustic trauma which occurred in active service. The private physician did not provide any further rationale. A January 2021 VA addendum opinion stated that it was less likely than not that the Veteran’s claimed bilateral hearing loss was related to active service. As rationale, the examiner stated that service entrance and service discharge examinations did not note hearing loss, the Veteran did not have a ratable hearing loss until 2014, and per medical literature the opposite ear to a firing weapon would demonstrate hearing loss which was contradictory to what the Veteran reported. The examiner did concede exposure to acoustic trauma during active service. A February 2021 VA addendum opinion stated that it was less likely than not that the Veteran’s claimed bilateral hearing loss was related to active service. As rationale, the examiner stated that medical literature did not support hearing loss which developed later after acoustic trauma. The examiner also found that the hearing threshold shift noted in the Veteran’s service treatment records was mild and would not be supportive of later developing of hearing loss because the threshold shift improved with re-testing during the service discharge examination. As there was no evidence of a ratable hearing loss until 2014 and no supporting medical literature of hearing loss developing after acoustic trauma, the examiner found it was less likely than not that any claimed hearing loss was related to active service. Medical treatment records reflect the Veteran was treated for hearing loss throughout the appeal period. Although it is unclear whether or not these audiometric ratings are valid for rating purposes, the Board finds that these measurements can be used to determine whether or not there is hearing loss for VA purposes. 38 C.F.R. § 3.385; See also 38 C.F.R. § 4.85. A March 2011 audiological evaluation recorded speech recognition scores using the Maryland CNC Test for the right ear was 100 percent and the left ear was 100 percent. A May 2015 audiological evaluation recorded speech recognition scores using the Maryland CNC Test for the right ear was 100 percent and the left ear was 100 percent. A May 2018 audiological evaluation recorded speech recognition scores using the Maryland CNC Test for the right ear was 88 percent and the left ear was 92 percent. An August 2019 audiological evaluation recorded speech recognition scores using the Maryland CNC Test for the right ear was 96 percent and the left ear was 92 percent. In adjudicating this claim, the Board must assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). The Board must also assess the credibility, and therefore the probative value, of the evidence of record in its whole. Owens v. Brown, 7 Vet. App. 429 (1995). In determining whether documents submitted by a Veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). As an initial matter, the Board notes that hearing loss is the type of symptom that is readily amenable to lay observation as it is subjective to the claimant. Thus, the Veteran is competent to report his symptoms and their frequency. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The VA examination reports, medical treatment records, and several lay statements of record note the Veteran’s continued reports detailing his hearing loss and his contention that he was exposed to sound in service. Nothing in the record contradicts his statements, and his statements are generally consistent with the circumstances of his service. Thus, the Board finds the Veteran’s statements are credible and probative. Upon consideration of the above evidence, the Board finds that, resolving reasonable doubt in the Veteran’s favor, a grant of service connection for bilateral hearing loss is warranted. The evidence, when considered in total, shows a current diagnosis of hearing loss, which the Veteran has reported began during service and has continued from that time to the present. With regard to the Veteran’s complaints of in-service noise exposure, the Board finds credible his account of noise exposure in service as it is consistent with his military personnel records. As noted above, the competent medical evidence has identified that the Veteran carries a current diagnosis of bilateral hearing loss, and no medical professional has disputed that the Veteran was exposed to acoustic trauma in service. The Board notes that the May 2011 VA examiner stated that it was less likely than not that the Veteran’s bilateral hearing loss was related to his service. However, the Board finds that this medical opinion did not provide rationale for the examiner’s opinion as it relied simply on lack of service treatment records to provide its rationale for a negative etiologic opinion. Similarly, the January 2021 and February 2021 examiner opinions relied on lack of service treatment records and length of time between service discharge and ratable hearing loss as rationale for a negative etiologic opinion. While typically the Board would consider length of time between active service and post-service records relating to hearing loss as a factor against service connection, here the examiners both relied on length of time based on whether or not the Veteran’s hearing loss was ratable for VA purposes and not the length of time between discharge and treatment. Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Consequently, the Board finds that the May 2011, January 2021, and February 2021 VA addendum opinions have no probative value. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). While the May 2014 private opinion does provide a positive etiologic opinion, as the examiner provided no rationale for his opinion, the Board similarly cannot afford it any probative weight. The Board finds that the record contains credible evidence of a continuity of bilateral hearing loss symptoms beginning in service and continuing thereafter. The Board has no reason to doubt the veracity of the Veteran regarding the onset of his bilateral hearing loss and the continuity of pertinent symptoms. Thus, the Board finds the Veteran’s competent and credible statements more persuasive than the VA examiners’ opinions of record. Based upon the Veteran’s noise exposure in service and his competent and credible reports of continuous hearing loss symptoms since service, the Board finds that his hearing loss is a result of his military service. With resolution of reasonable doubt in the Veteran’s favor, service connection for bilateral hearing loss is warranted. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Peden 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.