Citation Nr: 21023370 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-31 318 DATE: April 20, 2021 ORDER Service connection for a bilateral hearing loss is granted. FINDING OF FACT By resolving doubt in his favor, the evidence of record demonstrates that the Veteran’s bilateral hearing loss is related to military service, to include noise exposure therein. CONCLUSION OF LAW The criteria for service connection for a bilateral hearing loss disability have been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1965 to January 1969. This case is before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO denied the Veteran’s petition to reopen the previously denied claim or entitlement to service connection for a bilateral hearing loss disability. The Veteran’s notice of disagreement (NOD) was received in May 2015. The RO issued the statement of the case (SOC) in June 2016, and the Veteran’s VA Form 9, substantive appeal was received in June 2016. In March 2019, the Board (i) reopened the claim for service connection for a bilateral hearing loss disability, and (ii) remanded the case for further development and adjudicative action. The claim has been returned to the Board at this time for further appellate review. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, 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 - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, certain chronic diseases, including sensorineural hearing loss and tinnitus (as organic diseases of the nervous system), may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. To establish service connection under this provision, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology, however, can be applied only in cases involving those conditions explicitly enumerated under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the purpose of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels (dB) or greater; or when the auditory threshold for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 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. When audiometric test results at separation from service do not meet the regulatory requirements for establishing a “disability” at that time, a veteran may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The threshold for normal hearing is from 0 to 20 decibels. Id. at 157. The Veteran contends that he has a bilateral hearing loss disability that is related to service; specifically, that the hearing loss is related to in-service noise exposure. Initially, the Veteran has a current disability, for VA purposes, of bilateral hearing loss. See, e.g. February 2010 VA hearing loss and tinnitus Disability Benefits Questionnaire (DBQ); February 2016 private audiology opinion; October 2019 VA hearing loss and tinnitus DBQ. Additionally, the RO has previously granted a separate claim for service connection for tinnitus, as related to in-service noise exposure. In so granting, the RO referenced a February 2010 VA examiner’s finding that the Veteran was likely exposed to “high risk noise” in service. Moreover, the Veteran’s military occupational specialty (MOS) of Fire Protection Specialist carries a high probability of hazardous noise exposure. Accordingly, hazardous noise exposure is consistent with the Veteran’s MOS, and there is no evidence which would dispute a finding that the Veteran was exposed to hazardous noise during service. For those reasons, in-service hazardous noise exposure is conceded, and the second element of the service connection claim is met. Accordingly, the dispositive issue in this case is whether the Veteran’s current bilateral hearing loss disability is related to service. Relevant to that issue, the record contains the Service Treatment Records (STRs), private treatment records, and three opinions. STRs, including audiograms conducted upon entrance to service in August 1965 and prior to separation, in December 1968, show that the Veteran’s hearing was within normal limits prior to service, during service, and upon separation from service. In February 2010, a VA examiner reviewed the STRs, and conducted audiometric testing which revealed a bilateral hearing loss disability for VA purposes. The examiner opined that the bilateral hearing loss disability was less likely as not related to service. In so opining, the examiner cited post-service noise exposure. The examiner also cited, as central to the opinion, that the Veteran’s STRs do not show that the in-service noise exposure caused any permanent negative impact on the Veteran’s hearing. In February 2016, a private audiologist conducted audiometric testing which revealed the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 40 60 70 LEFT 20 20 35 70 75 The examiner opined that the bilateral hearing loss disability was “more likely than not” related to in-service noise exposure. In support of the opinion, the examiner reviewed the STRs indicating a high probability of noise exposure in service, as well as the Veteran’s various occupations after he left service. The examiner stated that the opinion was “based on case history of excessive noise while serving, notched configuration to hearing loss, and onset of tinnitus.” In October 2019, a VA examiner opined that the Veteran’s bilateral hearing loss disability was less likely than not related to service. The examiner cited evidence demonstrating that the Veteran did not suffer hearing loss during service, but rather had normal auditory thresholds without significant decrease beyond normal progression and test/retest variability throughout active service. The examiner reviewed the February 2016 opinion, and disputed the February 2016 examiner’s finding by pointing out that the STRs do show normal auditory thresholds at separation from service. The examiner cited an Institute of Medicine (IOM) study from 2005 which concluded that there is insufficient scientific evidence for delayed-onset hearing loss due to military noise exposure. The examiner noted insufficient evidence from longitudinal studies to determine whether permanent hearing loss can develop years after military noise exposure. The examiner discussed the anatomical and physiological nature of hearing loss as indicating that delayed onset hearing loss is unlikely. Then, the examiner noted that when hearing is normal on discharge and there is no permanent positive threshold shift in service, there is “no basis on which to conclude that” the Veteran’s hearing loss is related to service. As the record contains opinions both in favor and against a nexus, the Board weighs the probative value of each. First, the February 2010 VA examiner’s opinion is based almost solely on the fact that there was no in-service evidence of a permanent hearing loss disability. However, as the Board noted in the prior remand, the absence of evidence of in-service complaints of, or treatment for, bilateral hearing loss is not a sufficient basis, on its own, to support a negative nexus opinion. As so, the opinion carries no probative value. Second, the February 2016 private examiner reviewed the Veteran’s service personnel records, and considered the in-service noise exposure as especially relevant to the issue. The examiner’s opinion is clearly worded, and is supported by an accurate factual basis which considers the specific nature of the Veteran’s bilateral hearing loss disability—that is, the examiner considered his in-service noise exposure, post-service noise exposure, and his service-connected tinnitus. Importantly, the examiner also suggested that the hearing loss is related to the tinnitus, by indicating that both conditions are caused by in-service noise exposure. Based on the examiner’s clearly worded rationale which was formed in light of the Veteran’s unique disability picture, the opinion carries substantial probative value. Third, the October 2019 VA examiner’s opinion carries significant probative value. The examiner reviewed the Veteran’s claims file, considered the medical literature, and considered the Veteran’s unique disability picture; then, the examiner applied the medical knowledge concerning hearing loss caused by military noise exposure to form a clearly worded, and thoroughly supported, opinion. For that reason, the opinion carries significant probative value. Based on the foregoing, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s bilateral hearing loss is related to military service, particularly the significant noise exposure therein. By resolving all reasonable doubt in favor of the Veteran, the Board finds that the evidence of record demonstrates that his bilateral hearing loss is related to his military service. Accordingly, the claim of service connection for bilateral hearing loss is granted at this time, based on the evidence of record. See 38 C.F.R. § 3.303. In so reaching that conclusion, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. KAYS HUKILL 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.