Citation Nr: 21022278 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 15-24 001 DATE: April 15, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran's bilateral ear hearing loss disability is etiologically related to his in-service hazardous noise exposure. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1980 to January 1984. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in St. Petersburg, Florida. In June 2019, the Veteran testified at a travel board hearing at the VA Regional Office (RO) in Montgomery, Alabama, before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the electronic claims file. This matter was previously before the Board in August 2019 when it was remanded for further evidentiary development. The Board observes that there has been substantial compliance with the remand directives and the matter is now in a position for further adjudicative action. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). This appeal was originally certified to the Board along with the issue of entitlement to service connection for degenerative arthritis of the spine. In an October 2020 rating decision, the RO granted entitlement to service connection for lumbar spine degenerative arthritis. As such, the issue is no longer in appellate status before the Board. Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). 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. 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. Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been "shown in service," there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in-service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. 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). 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). Lay evidence can also 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 at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 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) (2012). To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996 Entitlement to service connection for bilateral hearing loss The Veteran contends that he has bilateral hearing loss that was incurred during active duty. Based on a review of the evidence and affording the Veteran the benefit of the doubt, the Board agrees. Hearing loss for the purposes of VA disability compensation is considered a disability when the auditory threshold in any of the 500, 1000, 2000, 3000, and 4000 hertz frequencies is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 hertz are 26 decibels or greater; or when the speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Court has held that a veteran may establish the required nexus between current hearing loss disability and his term of military service if he can show by competent evidence that his hearing loss disability resulted from the in-service acoustic trauma even where the hearing loss disability does not arise in service. Godfrey v. Derwinski, 2 Vet. App. 352 (1992). Service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service is not precluded under the regulations if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). In addition to providing objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). A review of the Veteran’s service treatment records reflects a normal ear examination and no reports of ear trouble upon enlistment. An October 1980 general medical clinic visit for complaints documented a foreign object in the left eye two days prior that occurred when working under a truck. His eye was irrigated in the clinic and a dressing was applied. He was seen in ophthalmology the next day with a note “doing well.” In June 1982 the Veteran completed a dental history indicating that he had not been under a physician’s care in the last two years. Upon separation, the Veteran had a normal ear examination. The Veteran underwent a VA hearing loss and tinnitus examination in March 2012. The examiner did not report the left ear hearing thresholds as the Veteran was inconsistent with his responses. The examiner believed that he had asymmetrical hearing loss, but it could not be confirmed based upon the examination. The Veteran had 100 percent speech recognition in his right ear with an undetermined score for his left ear. The Veteran advised the examiner that he was a wire systems installer in the Army with exposure to rifles, machinery generators and trucks without the use of hearing protection. He also served in the National Guard and Reserves as an Engineer. During the examination, the Veteran denied noise exposure without the use of hearing protection. The examiner concluded that the Veteran’s tinnitus was more likely than not the result of conceded noise exposure in service. However, as to the hearing loss, the examiner indicated that an opinion could not be reached without resorting to speculation. In April 2012, the Veteran underwent a VA examination for ear conditions. Following the examination in May 2012, he received a computerized axial tomography scan of his ears which reported no evidence of retrocochlear lesions and normal auditory canals and temporal bones. The examiner was unable to provide an opinion as to the Veteran’s asymmetric hearing loss without resorting to speculation. In June 2019 the Veteran offered testimony that he does not deer hunt any longer as he cannot climb trees due to his lumbar spine condition. The Veteran underwent a lumbar fusion procedure in 2011. The Veteran described working around satellite and microwave dishes with generators without ear protection in service. In January 2020, the Veteran underwent a private audiological evaluation. The examiner reviewed an STR documenting an eye injury from October 1980. The Veteran’s indicated that he noticed a decline in his hearing after the October 1980 incident as well as a tinnitus in both ears that was worse in the left ear. The Veteran reported current functional losses in understanding speech such that he resorts to lip reading, has frustration in communicating with family and friends that has caused arguments with family members, inability to hear in a noisy environment, inability to hear a whispered voice, and difficulty in listening to the television and the radio. During service, the Veteran worked around generators and qualified in basic training with an M-16 and grenade launcher. The earplugs provided on the firing range were foam inserts. The Veteran’s hobbies are fishing, hunting, and riding a motorcycle. He does not use hearing protection while hunting. Since separation from active service, the Veteran has worked as a truck driver. The Veteran described the incident that precipitated his hearing loss when he blacked out working under a truck and woke up in pain in sick call. Metal was removed from behind his eye. The private audiologist noted that the average, an otherwise healthy person will have normal hearing at age 60 unless exposed to high noise levels. The audiologist also commented that noise-induced hearing loss is typically symmetrical unless a specific event explains a unilateral loss. She offered an opinion that the Veteran’s hearing loss was more likely than not caused or worsened by military noise exposure, a history of hunting without hearing protection and years of driving a truck. The Veteran underwent a VA hearing loss and tinnitus examination in January 2020. The Veteran reported functional impairment in headaches, imbalance, pain, and traumatic brain injury. Based upon her examination, the examiner offered her opinion that it is less likely than not that the Veteran’s hearing loss is related to military noise exposure. As rationale, she noted that after review of service records, hearing loss did not exist prior to service and that there was not a permanent positive threshold shift greater than normal measurement variability for either the right or the left ear from service induction to separation. There was no report of a complaint or treatment for hearing decrease in his STRs or at separation. Although noise exposure is conceded and the relationship of noise, auditory damage and hearing loss is well-established, auditory damage and hearing loss are not conceded based on noise alone. In conclusion, the examiner stated that there must be a nexus of auditory damage to relate current hearing loss to military noise and not another etiology. The Veteran’s DD Form 214 shows that served as a wire systems installer and was awarded an M-16 rifle expert badge which is associated with hazardous noise exposure. Further, the RO has previously conceded the Veteran's exposure to noise exposure during service. In addition, the Veteran is already service connected for bilateral tinnitus. As such, the remaining issue for consideration is whether a nexus exists between the Veteran's bilateral hearing loss and active duty service. The Board notes that the 2012 VA hearing examiner suspected a left ear asymmetrical hearing loss although the examination was incomplete. During a 2019 audiology clinic visit, the Veteran received audiometric testing which revealed a left ear hearing loss. In January 2020 the private examiner found that the hearing loss was caused by military noise exposure, hunting without hearing protection and driving a truck. The VA examiner assigned great weight to a lack of significant threshold shift from induction to separation and no complaints of hearing decrease in service. However, the Board notes that the absence of hearing loss disability in service is not in and of itself fatal to a claim for service connection for bilateral hearing loss disability. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (finding that an examination is inadequate where the examiner relied on lack of evidence in service treatment records to provide a negative opinion). Therefore, the VA examiner's reliance on the absence of hearing loss in service lessens the probative weight of the medical opinion. In view of the totality of the evidence, including the private examiner’s note that in the absence of acoustic trauma, a healthy 60 year old’s hearing is otherwise normal; the Veteran’s indication of the lack of hearing protection in service; his discontinuation of deer hunting prior to 2011; and the fact that the Veteran is already service-connected for tinnitus based on the same in-service noise exposure, the Board finds that the Veteran's bilateral hearing loss cannot be reasonably disassociated from his military service. Accordingly, in applying the benefit-of-the-doubt doctrine, service connection for bilateral hearing loss is granted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. 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. •