Citation Nr: 21023954 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 18-05 840 DATE: April 21, 2021 ORDER Service connection for bilateral sensorineural hearing loss is granted. FINDING OF FACT The Veteran’s current bilateral sensorineural hearing loss for VA purposes is related to his military noise exposure. CONCLUSION OF LAW The criteria for service connection for bilateral sensorineural hearing loss are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1966 to March 1970. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a June 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been before the Board previously. In May 2019 the Board found the June 2016 opinion inadequate and remanded the issue on appeal to obtain an opinion regarding whether the Veteran’s post-service hearing loss was related to service, to include any in-service noise exposure. In November 2019 the Veteran was afforded another VA examination. In October 2020 the Board once again remanded the issue on appeal because it found that the November 2019 opinion was inadequate since it was based on an Institute of Medicine (IOM) study that was ultimately inconclusive and it improperly focused on the absence of hearing loss at separation from service. After a March 2021 SSOC considered the record, this matter was returned to the Board for appellate consideration. The Board finds there has been substantial compliance with its prior remand directives as the Veteran was afforded another VA examination in March 2021. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). The May 2019 Board decision granted service connection for tinnitus and the May 2019 rating decision implemented the grant. Therefore, the claim for service connection for tinnitus is no longer on appeal. Additionally, the Board notes that the Veteran waived the 30-day period before certifying the instant appeal back to the Board and the right to submit additional evidence for consideration by the RO. See 4/5/2021 SSOC. Service Connection Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Where a disease is first diagnosed after discharge, service connection will be granted when all the evidence, including that pertinent to service, establishes it was incurred in active service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.30(d). Service connection requires 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 condition incurred or aggravated by service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran is competent to report symptoms and experiences observable by his senses. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). A nexus between a current disability and an in-service injury or event may be established by evidence of continuity of symptomatology, if the condition is a chronic disease enumerated under 38 U.S.C. § 1101. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Sensorineural hearing loss and tinnitus are considered organic diseases of the nervous system, and as such are enumerated chronic diseases. See 38 U.S.C. §§ 1101, 1112; Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, October 4, 1995; 38 C.F.R. §§ 3.307, 3.309. The auditory threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of these frequencies are 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. It is not necessary to meet these criteria for a hearing loss disability during service to warrant service connection. Ledford v. Derwinski, 3 Vet. App. 87 (1992). When there is an approximate balance of positive and negative evidence regarding any material issue, or the evidence is in relative equipoise, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Service connection for bilateral sensorineural hearing loss. The Veteran contends that his current hearing loss disability is due to in-service exposure to loud, excessive, and hazardous noise from repairing teletype equipment in-service and incoming rockets and gunfire in Vietnam. See 2/21/2017 NOD; see also 11/22/2019 C&P Examination, at page 5. The record showed that the Veteran has a current diagnosis of bilateral sensorineural hearing loss disability for VA purposes per 38 C.F.R. § 3.385. See 6/3/2016 C&P Examination; see also 11/22/2019 C&P Examination; 3/18/2021 C&P Examination. Regarding the in-service incident, service treatment records from February 2016 showed that the Veteran had a left-sided hearing impairment (45 decibels at 4000 Hertz). Additionally, the separation examination from February 1970 showed that his hearing was within normal limits. See 4/22/2016 STR – Medical, at pages 4 and 32. Further, as mentioned above, the Veteran asserted that his current hearing loss disability was the adverse effect which resulted due to continued in-service exposure to loud, excessive, and hazardous noise from repairing teletype equipment in-service and incoming rockets and gunfire in Vietnam. In this regard, Military records indicate that the Veteran’s MOS was teletype repairman. See 3/14/2016 Certificate of Release or Discharge from Active Duty. The record showed a VA determination that the Veteran had a tour of duty in Vietnam and established noise exposure as it was consistent with the Veteran’s occupation and circumstances of service. See 1/30/2018 SOC, at page 17. The Board sees no reason to disturb this favorable finding so the second element of service connection is met. The June 2016 VA examiner opined that the Veteran’s bilateral hearing loss is less likely than not related to military noise exposure. As rationale, the examiner reasoned that that the Veteran’s left ear improved while in-service and the right ear was normal upon enlistment and separation. Additionally, the examiner cited a scientific inability to determine whether permanent noise-induced hearing loss can develop that long after noise exposure and emphasized an unlikelihood that delayed effects occur. See 6/3/2016 C&P Examination. However, in May 2019, the Board remanded the issue on appeal because it found this opinion inadequate. At the conclusion of the November 2019 VA examination, the examiner rendered a negative opinion. As rationale, the examiner cited the IOM report on noise exposure in the military and reported that research did not support the concept of delayed onset of hearing loss after thresholds are recorded as normal after noise exposure. See 11/22/2019 C&P Examination. However, in October 2020 the Board found the opinion inadequate because it was based on an IOM study that was ultimately inconclusive and it improperly focused on the absence of hearing loss at separation from service. The most recent VA examination was performed in March 2021. The examiner rendered a negative opinion. The examiner based the opinion on the results of the IOM report on noise exposure in the military and reported that research did not support the concept of delayed onset of hearing loss after thresholds are recorded as normal after noise exposure. See 3/18/2021 C&P Examination. However, the Boards finds this opinion inadequate. The March 2021 examiner, much like the November 2019 examiner, based the opinion on an IOM study that was ultimately inconclusive, and it improperly focused on the absence of hearing loss at separation from service. As mentioned above, the June 2016, November 2019, and March 2021 VA examinations of record were inadequate. Additionally, noise exposure was established due to the Veteran’s tour of duty in Vietnam and the circumstances of the Veteran’s MOS. Based on the above, and resolving doubt in favor of the Veteran, the Board finds that the Veteran’s bilateral sensorineural hearing loss began in and has continued since service. 38 C.F.R. §§ 3.102, 3.303(b), 3.309. Service connection for bilateral hearing loss is therefore warranted. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Fuentes, 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.