Citation Nr: 21024546 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 19-15 681 DATE: April 23, 2021 ORDER The application to reopen the claim for service connection for bilateral hearing loss is granted. Service connection for bilateral hearing loss is granted. FINDINGS OF FACT 1. A March 2009 rating decision denied an application to reopen a claim for service connection for bilateral hearing loss. The evidence received subsequent to the appeal period includes evidence that is not cumulative or redundant of the evidence previously of record and that relates to an unestablished fact necessary to substantiate the claim. 2. The Veteran’s hearing loss is related to service. CONCLUSIONS OF LAW 1. New and material evidence to reopen the claim of entitlement to service connection for bilateral hearing loss has been presented. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1954 to September 1957. The Veteran and his wife presented testimony at a hearing before the undersigned in February 2021. Application to Reopen A claim for service connection for hearing loss was denied in an August 2003 rating decision because there was no diagnosis of hearing loss and no nexus to active service. The record at the time of the decision did not include a complete set of available service medical records. The Veteran filed an application to reopen, and the record indicates that all available service medical records were associated with the file in February 2009, which included new information pertinent to the matter. In a March 2009 rating decision, VA denied the application to reopen. The Veteran subsequently filed another application to reopen. In a September 2015 rating decision, VA reopened the claim and confirmed and continued the 2003 denial of service connection. In May 2016, the Veteran submitted additional evidence, including lay statements from his wife and other individuals and private treatment records for bilateral hearing loss. In the August 2016 rating decision on appeal, VA confirmed and continued the previous denial of service connection. In connection with the Veteran’s claim to reopen, evidence has been added to the record, which includes diagnosis of hearing loss as defined by VA and testimony and statements that the Veteran experienced diminished hearing acuity during active service. The Board finds that new and material evidence has been received sufficient to reopen the previously denied claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service Connection The Veteran asserts that service connection is warranted for his bilateral hearing loss because, citing his MOS, it is related to his in-service acoustic trauma. In addition, he and his wife, to whom he has been married to for more than 66 years, testified that the Veteran has had hearing loss during and since service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty or active duty for training or for disability resulting from injury incurred in or aggravated by inactive duty for training. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served for at least 90 days during a period of war and manifests organic disease of the nervous system to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. For the purposes of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. The absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability, i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above, and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). After consideration of the record, the Board finds service connection is warranted for bilateral hearing loss. The record indicates that the Veteran has a current diagnosis of hearing loss as defined by VA, and National Guard records reveal audiometric findings indicative of bilateral hearing loss as defined by VA in May 1979, March 1980, January 1984, and December 1987 and right ear hearing loss in October 1991. The August 1957 separation examination does reveal “normal” clinical findings on the whispered voice test, but it does not include audiometric findings and whispered voice tests can be inaccurate and insensitive to the types of hearing loss most commonly associated with noise exposure. See Smith v. Derwinski, 2 Vet. App. 137, 138, 140 (1992) (audiometric evaluation is a more precise indicator of hearing problems than whisper voice testing.). The record includes the November 2018 VA examiner’s determination that the Veteran’s MOS had a high probability of hazardous noise exposure and the Veteran and his spouse’s competent and probative statements that he experienced diminished hearing acuity during and since active service. The record also includes an October 1994 medical finding that the Veteran had decreased hearing related to active military duty. The Board acknowledges that an October 1975 National Guard enlistment examination record reports normal audiometric findings and a negative nexus opinion from the November 2019 VA examiner. The Board finds the VA examiner’s opinion is of limited probative value because the examiner erroneously determined that the Veteran had normal hearing on National Guard testing in 1984, 1987, and 1991 when the testing showed bilateral hearing loss in 1984 and 1987 and right hearing loss in 1991. Thus, the competent and credible evidence of record shows that his current bilateral hearing loss began during service and have been recurrent since that time. The Veteran and his wife competently and credibly reported that they first noticed hearing loss wife are competent to report the onset and continuation of his hearing loss and tinnitus symptoms and the Board finds his testimony credible. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); see also Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board notes that the Veteran has bilateral hearing loss for VA compensation purposes. Thus, because the evidence shows that the Veteran’s bilateral hearing loss had its onset in service, service connection is warranted. See Flynn v. Brown, 6 Vet. App. 500, 503 (1994). STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Snyder, 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.