Citation Nr: 21023391 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 18-42 635 DATE: April 20, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran’s current bilateral hearing loss is related to in-service noise exposure.  CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385.  REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from December 1963 to November 1966. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which continued the July 2017 denial of the Veteran’s claim for service connection for bilateral hearing loss after additional evidence was received. In February 2019, May 2020, and December 2020, the Board remanded the claim. As the benefit sought is eing granted in full, discussion of compliance with the Board’s remand instructions is unnecessary. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first 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).  In addition to the criteria set forth above, service connection for impaired hearing is subject to the additional requirement of 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability only if at least one of the thresholds for the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of the frequencies are greater than 25 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. Entitlement to Service Connection for Bilateral Hearing Loss. An October 2019 VA audiometric examination report shows pure tone thresholds, in decibels, as follows:           HERTZ           500  1000  2000  3000  4000  RIGHT   30  35 50 55  60 LEFT   25 45  55  55 60    Speech audiometry revealed speech recognition ability of 76 percent in the right ear and of 52 percent in the left ear.  The above results establish the Veteran has a bilateral hearing loss disability under VA regulations. 38 C.F.R. § 3.385. In a July 2018 Statement of the Case (SOC), based on the Veteran’s Military occupational specialty (MOS) of military vehicle repair, the RO conceded that the Veteran was exposed to hazardous noise during his active duty service. Therefore, with regard to the Veteran’s bilateral hearing loss, the in-service injury requirement has been met. As the current disability and in-service injury element have been met, the remaining issue is whether there is a nexus between the two. In his June 2018 notice of disagreement, the Veteran stated that, as an auto repairman/mechanic during service, he was constantly exposed to trucks and loud engine noise. He also indicated that he was exposed to weapons fire, including being trained on the M-14 machine gun. He stated that no hearing protection was provided. The Veteran stated that he started to notice hearing loss in service and has continued to experience symptoms since his discharge. In his June 2018 Notice of Disagreement, he stated that he has suffered from hearing loss for many years. In his August 2018 VA-Form 9, he stated that he did not complain of hearing loss in service for fear of being labeled as weak and acknowledges he should have sought treatment for his hearing loss during service. In a December 2020 statement, the Veteran recalls thinking that his hearing problems would resolve and eventually go back to normal. The Veteran is competent to report about military noise exposure and the history of his bilateral hearing loss symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4 (Fed. Cir. 2007). The Board finds him credible in his reports that his hearing loss has continued since his discharge from service. Evidence against the claim includes an October 2019 VA examination report, in which the VA examiner found that it was less likely than not the Veteran’s hearing loss was incurred in or caused by service. The examiner reasoned that the Veteran’s enlistment and separation examinations indicated normal hearing and service treatment records (STRs) show no complaints or treatment for hearing loss or any significant change in the Veteran’s hearing from 1963 to 1971. The examiner noted that the Veteran’s hearing loss was not found until over 40 years after discharge. In February 2021, a VA audiologist reviewed the Veteran’s medical record and issued an addendum opinion concurring with the October 2019 examiner’s findings. She also concluded that it was less likely than not the Veteran’s current hearing loss is related to military noise exposure. The examiner determined that, because the Veteran’s hearing thresholds in both ears were within normal limits at the time of the separation exam, with no standard threshold shift evident in comparison to entrance thresholds, there is no evidence the Veteran’s current hearing loss was caused by or a result of service. However, the October 2020 and February 2021 opinions are flawed. Neither opinion took into account the Veteran’s lay statements indicating continuous hearing loss symptoms since service, instead relying primarily on the lack of complaints or treatment for hearing loss in the Veteran’s service treatment records (STRs), as well as the lack of a significant threshold shift in hearing function from his induction to his separation. Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that VA’s examiner’s opinion, which relied on the absence of contemporaneous medical evidence, “failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran’s] disability such that his claim for service connection could be proven without contemporaneous medical evidence”). As the VA examiners’ opinions failed to consider the Veteran’s lay contentions, regarding an onset of hearing loss during service, the opinions are inadequate, and are afforded little, if any, probative value. In sum, there are inadequate negative nexus opinions weighing against the claim, and competent, credible lay evidence in support. While the Board could remand the claim for an additional medical opinion, this would cause further delay and could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304 (c) (“The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination”); Gardner-Dickson v. Wilkie, No. 19-4765, 2020 U.S. App. Vet. Claims LEXIS 1927 (Panel Order), at *20 (denying petition for a writ of mandamus challenging a remand, but agreeing “with the petitioner that it ‘would not be permissible for VA to undertake... additional development if a purpose was to obtain evidence against an appellant’s case.’” (citing Mariano v. Principi, 17 Vet. App. 305, 312 (2003) and Hart v. Mansfield, 21 Vet. App. 505, 508 (2007)). The above evidence is sufficient to decide the claim. (Continued on the next page)   For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran’s current bilateral hearing loss is related to in-service noise exposure. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for bilateral hearing loss is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102 ; Buchanan v. Nicholson, 451 F.3d at 1335 (Fed. Cir. 2006)(“[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself”). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. K. Donaldson, 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.