Citation Nr: 21024788 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 15-10 312 DATE: April 26, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran’s bilateral hearing loss is etiologically related to an in-service injury or disease, to include in-service noise exposure. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309, 3.385 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from January 1983 to December 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2018, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing, and a transcript of that hearing is associated with the claims file. This matter was previously before the Board in August 2018 and September 2020, when it was remanded for additional development. It has since returned to the Board for adjudication. Entitlement to service connection for bilateral hearing loss is granted. Service connection will be granted if the evidence in the record demonstrates that a current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) an in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). For the purposes of applying the laws administered by VA, impaired hearing is 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. Certain chronic diseases, including organic diseases of the nervous system such as hearing loss and tinnitus, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service, if they manifested to a compensable degree within a presumptive period following separation from service, or if they were noted in service or within an applicable presumptive period with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Board points out that 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. meeting the requirements of 38 C.F.R. § 3.385) 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). The Veteran’s service treatment records (STRs), including his entrance and separation examinations, are silent with respect to hearing loss. VA and private treatment records of record are silent as to hearing loss until May 2012. The Veteran was afforded VA examinations in September 2012, March 2020, and December 2020. The September 2012 examination showed the Veteran did not have a hearing loss disability for VA purposes in his right ear. The Veteran was also a firearms instructor at a police department for about eighteen years after separation from service. The examiner noted the Veteran did not experience any significant threshold shifts during active service. The March 2020 examiner declared the Veteran’s audiogram to be invalid for rating purposes, stating that the results were “inconsistent with organic hearing loss.” Because the results were invalid, the examiner stated they could not provide a medical opinion on both the degree and cause of the Veteran’s hearing loss. In the December 2020 examination, the Veteran was diagnosed with bilateral sensorineural hearing loss for VA purposes. The examiner noted the Veteran’s 1982 enlistment examination, 1984 hearing conservation examination, and 1984 separation examination all showed the Veteran’s hearing was within normal limits. The examiner opined the Veteran’s hearing loss was less likely than not related to service because he had normal hearing upon entry and exit from service. Additionally, the examiner cited the “Noise and Military Service – Implications for Hearing Loss and Tinnitus” (2006) report by the Institute of Medicine (IOM), which stated that “there was no scientific basis on which to conclude that a hearing loss that appeared many years after noise exposure could be causally related to that noise exposure if hearing was normal immediately after the exposure.” The examiner noted the IOM report is the definitive consensus for hearing loss. At the February 2018 hearing, the Veteran testified that he was exposed to loud engine and gun noise while he was inside a tank. He described how he would sit next to the main gun, which he could hear through his CVC helmet. The Veteran also described how the speakers in his CVC helmet were loud so he could hear communications over the tank noise, as well as how he was unable to wear earplugs with his CVC helmet without muffling the communication transmissions. He also stated that he regularly had a ringing in his ears after getting out of a tank and said that he has had issues with ringing in his ears since leaving the service. Additionally, the Veteran addressed his career as a police firearms instructor, stating that he always operated firearms in a safe environment with proper hearing protection that was custom fit to his ears. The Veteran has a current diagnosis of bilateral hearing loss, as shown on his December 2020 examination. Thus, the Board finds the first element of service connection has been met. In its August 2018 decision awarding service connection for tinnitus, the Board conceded the Veteran was exposed to hazardous noise during service due to his job as an armor crewman. Thus, the second element of service connection has been met. With regards to a nexus between the Veteran’s service and his hearing loss, the Board finds the evidence to be in relative equipoise as to a connection between the two. While both the September 2012 and December 2020 examiners provided negative nexus opinions, both focused on the lack of evidence within the Veteran’s STRs; however, the absence of in-service evidence of hearing loss is not fatal to a claim for service connection. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Additionally, while the December 2020 examiner opined the Veteran’s bilateral hearing loss was not related to service because, as per the IOM report, hearing loss due to noise exposure is evident immediately or soon after the exposure event, the examiner did not consider the portion of the IOM report that discussed delayed onset of a Veteran’s perception of hearing loss. In Lemmons, the United States Court of Appeals for Veterans Claims (Court) found that, while the report states that “based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely” that the onset of hearing loss begins years after noise exposure occurs (IOM report at 47), this statement does not reflect the full extent of the report’s findings pertinent to the matter. The Court provided that, while a portion of the IOM report found there is no evidence of delayed onset hearing loss due to noise exposure, another portion of the same IOM report found that “an individual’s awareness of the effects of noise on hearing may be delayed considerably after the noise exposure.” (IOM report at 203-04). The Court has directed attention to the fact that the IOM report’s language may support a theory of service connection involving delayed onset of a veteran’s perception of hearing loss such that a VA examiner’s citation of the report should contemplate all of the pertinent aspects of its findings. See, e.g., Lemmons v. McDonald, No. 15-3043, 2016 LEXIS 1646 (Vet. App. October 28, 2016) (non-precedential); see also Bethea v. Derwinski, 2 Vet. App. 252 (1992) (single-judge memorandum decisions may be cited or relied upon for any persuasiveness or reasoning they contain). Thus, the Board finds the September 2012 and December 2020 examinations to be inadequate. The Veteran’s February 2018 testimony of exposure to loud noises during service, as well as hearing a ringing in his ears after exiting a tank and later of ringing in his ears after separation from service are indicative of some hearing loss. In his December 2011 VA Form 21-526, Application for Compensation and/or Pension, the Veteran also stated he had experienced hearing loss from when he was in the service to date. As a layperson, the Veteran is competent to testify to having been exposed to loud noises during service and experiencing tinnitus and hearing loss. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Board finds the Veteran’s statements to be competent and credible. After a review of the above evidence, and after affording the Veteran the benefit of the doubt, the Board finds that service connection for bilateral hearing loss is warranted. The evidence of record is in relative equipoise with respect to a nexus between the Veteran’s conceded in-service noise exposure and his current bilateral hearing loss. Accordingly, service connection for bilateral hearing loss is granted. Caroline B. Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Gabrielle Ongies, 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.