Citation Nr: 21022402 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 16-14 090 DATE: April 15, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT The evidence is in relative equipoise as to whether the Veteran’s bilateral hearing loss is causally or etiologically related to in-service noise exposure. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1131, 5017; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from May 1956 to April 1958, with subsequent periods of Reserve service. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In a September 2018 decision, the Board denied the Veteran’s claims for service connection for bilateral hearing loss and tinnitus. The Veteran subsequently appealed the Board’s September 2018 decision. In December 2019, the United States Court of Appeals for Veterans Claims (CAVC) granted a November 2019 Joint Motion for Remand (JMR) to vacate the September 2018 decision and remand the case to the Board. In September 2020 the Board remanded the issues of entitlement to service connection for bilateral hearing loss and tinnitus. In a January 2021 rating decision the Agency of Original Jurisdiction (AOJ) granted service connection for tinnitus and thus it is no longer in appellate status. Entitlement to service connection for bilateral hearing loss. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for organic diseases of the nervous system if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptoms since service for diseases identified as “chronic” in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Sensorineural hearing loss (organic disease of the nervous system) is a chronic disease listed under 38 C.F.R. § 3.309(a). Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; where the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when the Maryland CNC speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. The Veteran contends that he has had bilateral hearing loss since service. On his January 2021 VA examination he pointed out that he did not have hearing protection during service. The Veteran’s service treatment records do not demonstrate any complaints of hearing loss. Post-service medical evidence shows that the Veteran has bilateral hearing loss. See January 2021 VA examination showing 45 decibels at 3000 Hertz in each ear with a diagnosis of sensorineural hearing loss; see also May 2014 VA examination. The Veteran contends that he experienced noise exposure during active duty service. The Veteran served as a Disbursing Clerk (DK), which has a low probability of noise exposure. See DD Form 214, Certificate of Release or Discharge from Active Duty. However, the Veteran asserts that during service in the US Navy he worked on or near a gun mount and was exposed to artillery fire. See, e.g., December 2013 statement. He indicated that he had bilateral hearing loss since service. Id. He has also provided lay statements including in December 2014 from other servicemembers who attest that the Veteran worked on or near gun mounts. The Board finds the Veteran and the servicemembers credible and accepts that he experienced noise exposure in service. The Veteran’s contentions are credible and consistent with the circumstances of his service. Hence, there is probative evidence with regard to a nexus on the basis of continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b), as the Veteran has a diagnosis of bilateral sensorineural hearing loss and he is competent to report that he has experienced symptoms of bilateral hearing loss since service. The Board recognizes that there are favorable and unfavorable opinions regarding the etiology of the Veteran’s bilateral hearing loss. As for the favorable opinion, in August 2016 a private physician opined that the noise exposure the Veteran described (i.e., working with guns on an aircraft carrier) more likely than not “had an impact” on the degree of his hearing loss. The unfavorable opinions are dated in May 2014 and January 2021. As the parties to the November 2019 JMR found the May 2014 opinion to be inadequate it need not be further addressed. As for the January 2021 VA opinion, it is of limited probative value as it is based on the absence of hearing loss in service and the absence of a hearing loss disability in service is not in and of itself fatal to a claim for service connection for hearing loss. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Thus, in viewing the evidence in the light most favorable to the Veteran, the Board finds that the evidence is in relative equipoise (evidence for and against the Veteran’s claim is essentially equal), the benefit-of-the-doubt rule applies and the claim of entitlement to service connection for bilateral hearing loss is granted. 38 U.S.C. § 5107(b). Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Mac, 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.