Citation Nr: 21023960 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-09 543 DATE: April 21, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. REMANDED Entitlement to special monthly compensation (SMC) based on the need for aid and attendance or housebound status of the Veteran is remanded. FINDING OF FACT The Veteran’s bilateral hearing loss disability is etiologically related to in-service acoustic trauma consistent with his combat service in Korea. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1154 (b), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1952 to August 1954, with service in Korea. He had additional service in the Army Reserves. The Veteran’s military decorations include the Korean Service Medal, the United Nations Service Medal, and two Bronze Service Stars. This matter comes before the Board of Veterans Appeals (Board) on appeal from a September 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO or AOJ). This case was previously before the Board in June 2020 when it was remanded for additional development. It has now returned to the Board for further appellate action. Entitlement to Service Connection for Bilateral Hearing Loss Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010).. When a chronic disease is shown in service sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the term “chronic disease in 38 C.F.R. § 3.303 (b) is limited to a chronic disease listed at 38 C.F.R. § 3.309 (a)). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). The Veteran contends that he experienced the onset of bilateral hearing loss during active duty. In his March 2016 VA Form 9, the Veteran wrote that he served in heavy artillery while stationed in Korea and that he spent five months in the warzone. He stated that while he was in combat, “bombs were going off all around me, the earth shook, and my hearing was affected.” In his June 2013 application for benefits, the Veteran reported that his bilateral hearing loss disability began in 1954. The first element of service connection a current disability is present. The Veteran was diagnosed with a bilateral hearing loss disability in accordance with 38 C.F.R. § 3.385 upon audiological evaluation in March 2014. He has also credibly reported experiencing hearing loss since active duty. See March 2016 VA Form 9 wherein the Veteran reports that he was unaware that he could file an application for benefits sooner. Service records confirm that the Veteran served as a Squad Leader on an AAA (Anti-Aircraft Artillery) Battery. Noise exposure is consistent with his military occupational specialty (MOS) and service in Korea. Such was previously conceded by the Board in a December 2017 Remand. The second element of Holton is met.   The Veteran also reports that he experienced the onset of bilateral hearing loss following combat actions in Korea. He states onset of hearing loss during service and the incurrence of a chronic bilateral hearing disability due to in-service injuries (noise exposure). He adds that his hearing loss progressively worsened over the years. The combat presumption contained within 38 U.S.C. § 1154 (b) not only applies to a combat injury, but also the consequences of that injury, at least in service. Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012) (holding that the Board was required to apply the section 1154 (b) presumption to the Veteran’s claimed acoustic trauma during service and the separate question of whether he suffered permanent hearing loss while on active duty). Therefore, as the Veteran has reported the onset of hearing loss and a chronic disability during active duty, 38 U.S.C. § 1154 (b) also applies to his contentions regarding the onset of the disability during service. See Id. Section 1154 (b) provides that service connection for the in-service injury can only be rebutted by clear and convincing evidence to the contrary. The Veteran maintains that he experienced a loss of hearing during service and his hearing loss has continued since active service. He is considered competent to describe the features or symptoms of an injury or illness. Falzone v. Brown, 8 Vet. App. 398 (1995). Although the record contains some evidence weighing against service connection, specifically March 2014, January 2020, and January 2021 VA medical opinions, the Board finds that it does not constitute clear and convincing evidence against the in-service incurrence of chronic bilateral hearing loss. The March 2014 and January 2020 VA medical opinions provided “mere speculation” opinions and have been determined to be inadequate. See December 2017 and June 2020 Board Remands. In the most recent VA opinion in January 2021, the examiner similarly provided a “mere speculation” opinion. The VA medical opinions of record, therefore, are all of reduced probative value. The Board also notes that the Veteran’s July 1952 induction examination and August 1954 separation examination show that an audiogram was not conducted; rather, the Veteran’s hearing was tested with a whisper test. Thus, it is not possible to determine whether the Veteran manifested a significant hearing threshold shift during active duty. The Board finds that the Veteran has provided a competent and credible report that he experienced a loss of hearing during active military service. Moreover, a review of the record indicates the Veteran’s post-service occupations to include farming, grocery store, and cement finishing. See September 2020 VA treatment record and February 2015 private treatment record. None of the VA examiners elicited information from the Veteran to indicate whether there was any noise exposure in the context of the Veteran’s post-service occupations. The Board will, therefore, resolve any doubt in the Veteran’s favor and finds that service connection is warranted for bilateral hearing loss in accordance with VA’s combat presumption and 38 U.S.C. § 1154 (b). REASONS FOR REMAND Entitlement to SMC Based on the Need for Aid and Attendance or Housebound Status of the Veteran is Remanded. The Board cannot address the claim for entitlement to SMC until the AOJ implements the award of service connection for bilateral hearing loss and assigns an initial disability rating and effective date. Therefore, the claim for entitlement to SMC is remanded to allow for the implementation of this Board decision. The matters are REMANDED for the following action: Implement the Board’s decision herein, to include assigning an initial disability rating(s) and effective date(s) for the award of service connection for bilateral hearing loss. Then, readjudicate the Veteran’s claim for entitlement to SMC based on the need for aid and attendance or housebound status for the Veteran.   If the claim is denied, send the Veteran and his representative a SSOC and give them time to respond to it before returning the claim on appeal to the Board for further appellate consideration. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Smith, 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.