Citation Nr: 21024813 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 15-46 288 DATE: April 26, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT The probative evidence of record indicates the Veteran’s bilateral hearing loss is a result of service or is etiologically related to in-service noise exposure. CONCLUSION OF LAW The criteria for a grant of service connection for bilateral hearing loss has been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from February 1975 until his honorable discharge in February 1978. The Board of Veterans’ Appeals (Board) thanks the Veteran for his service to our country. This matter is before the Board on appeal from an April 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). A September 2018 Board decision denied service connection for bilateral hearing loss disability. The Veteran timely appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court) contesting the Board’s September 2018 decision. In June 2019 the Court vacated the Board decision and remanded the issue in compliance with a Joint Motion for Remand (JMR). A November 2019 Board decision remanded the issue to the Agency of Original Jurisdiction (AOJ) in compliance with the JMR requirements. Subsequently, a Logistics Health Incorporated (LHI) audiological examination was conducted in February 2020, and the examiner provided a new opinion on the etiology of the bilateral hearing loss disability. However, a November 2020 Board decision found there was not substantial compliance with the November 2019 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Therefore, the Board remanded the issue of entitlement to service connection for bilateral hearing loss disability to the AOJ for an addendum opinion. A review of the claims file shows there has been substantial compliance with the Board’s remand directives. Stegall, 11 Vet. App. 268. The case has been returned to the Board for further consideration. Legal Criteria for Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may also 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). Generally, in order to prevail on the issue of service connection, the evidence must show: (1) the existence of a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested within one year from the date of separation from service. 38 C.F.R. §§ 3.307, 3.309(a). The chronic diseases listed in 38 C.F.R. § 3.309(a) include sensorineural hearing loss. The presumption for chronic diseases relaxes the evidentiary requirements for establishing entitlement to service connection. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012). Specifically, § 3.303(b) provides that when a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service (“intercurrent causes”). If the evidence is not sufficient to show that the disease was chronic at the time of service, then the claim may be established with evidence of continuity of symptoms after service, which is a distinct and lesser evidentiary burden than the nexus element three-part test under Shedden. Walker, 708 F.3d at 1138; 38 C.F.R. § 3.303(b). Showing a continuity of symptoms after service itself “establishes the link, or nexus” to service, and also “confirm[s] the existence of the chronic disease while in service or [during a] presumptive period.” In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for any evidence that it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Dayne v. Nicholson, 20 Vet. App. 512, 516 (2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). It is noted that competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (Fed. Cir. 1996). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to service connection for bilateral hearing loss. The Veteran contends his bilateral hearing loss is the result of exposure to acoustic trauma during active duty service. Impaired hearing is defined as a disability under VA law when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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 threshold for normal hearing is from 0 to 20 decibels; higher thresholds indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Initially, the Board notes the AOJ made the following favorable findings: (1) the Veteran has been diagnosed with a disability and (2) the Veteran’s military occupational specialty (MOS) of Unit Supply Clerk and award of Rifle M16 Expert Badge, shows a probability of exposure to hazardous noise. These are favorable findings that will not be readjudicated by the Board. Thus, the question before the Board is whether the Veteran’s bilateral hearing loss was incurred in or is related to his military service, to include in-service noise exposure. The Veteran’s service treatment records (STRs) show the Veteran had his hearing tested in December 1974, the beginning of his active duty service, and in January 1978, at his separation from active duty service. The puretone thresholds during these examinations do not rise to the level of a hearing disability for VA purposes, however, the January 1978 examination does show some degree of hearing loss at discharge. 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, 5 Vet. App. at 159. On his initial application for service connection, the Veteran asserted he experienced symptoms of hearing loss while on active duty and those symptoms have continued through the present day. The Veteran recalled spending a lot of time on the firing range practicing for proficiency with the M-16 Rifle, M60 machine gun, and live hand grenades. He also described night infiltration training, where he was exposed to overhead live weapons fire and explosives. The Veteran stated he was assigned to the HHC 40th Signal Battalion, where he served as a member of the pistol team, and he was often exposed to loud generators. He stated he was not issued proper hearing protection. See October VA Form 21-4138. In February 2014, the Veteran provided an additional lay statement in support of his claim, as well as two buddy statements, one from C.W., the Veteran’s spouse, and L.W., a fellow soldier. In his statement, the Veteran attributed his hearing loss disability to noise hazards experienced during his time in the military. He stated after basic training he was assigned to a communications combat support unit (mobile). He reported exposure to hazardous noise due to time at the range firing M16 rifles, M60 machine guns, and pistols as a member of the pistol team. In her buddy statement, the Veteran’s spouse, C.W., stated she and the Veteran were married in April 1991. C.W. stated the Veteran has had trouble hearing since, and prior to their marriage. C.W. stated the Veteran’s hearing has progressively worsened. In his buddy statement, L.W. stated during their Army training, he and the Veteran spent time in helicopters, riding in the back of two-ton trucks, and working around massive generators. L.W. recalled their Army training was done without being provided any hearing protection. The Veteran was afforded a VA audiological examination in April 2014. During the examination the Veteran reported bilateral hearing loss. He reported in-service exposure to weapons training, grenade simulator training, as well as generator, helicopter, and jet engine noise, without the use of hearing protection. The examiner diagnosed the Veteran with bilateral sensorineural hearing loss and opined the Veteran’s condition was less likely than not related to active duty military service. In providing the negative nexus opinion, the examiner stated a review of the Veteran’s in-service audiograms showed no significant threshold shifts, therefore, his in-service noise exposure did not have a detrimental effect on his hearing sensitivity. Additionally, the examiner stated with respect to delayed onset hearing loss, the Institute of Medicine (2006) found no scientific/medical basis on which to conclude that delayed onset of hearing loss exists based on our understanding of auditory physiology. The parties to the June 2019 JMR agreed the April 2014 VA examiner’s opinion was inadequate, in part, because it was based upon an inaccurate factual basis. See Reonal v. Brown, 5 Vet. App. 458, 460-61(1993). Specifically, the examiner cited to an Institute of Medical study (IOM) and opined that the study found “no scientific/medical basis on which to conclude that delayed onset of [hearing loss] exists based on our understanding of auditory physiology.” The Court stated, the IOM study concluded only that there was “not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one’s lifetime, long after cessation of that noise exposure.” Accordingly, the Court found the examiner’s opinion is based on an inaccurate interpretation of the IOM report. Thus, the claim was remanded back to the Board, in part, to obtain an adequate medical examination. Stefl v. Nicholson, 21 Vet. App. 120 (2007). Upon readjudication, the Board, in a November 2019 decision, remanded the claim for an examination with medical opinion. Pursuant to the November 2019 BVA remand, a LHI audiological examination was conducted in February 2020. During the examination the Veteran reported bilateral hearing loss with an onset of over forty years. He reported in-service exposure to weapons training, as well as trip wires/grenade simulators, without the use of hearing protection. The Veteran described post-service occupational noise exposure including employment in a sheet metal shop with intermittent use of hearing protection; employment with the State Highway Department with use of hearing protection; and employment with the Department of Weights/Measures where hearing protection was rarely required. The examiner found the Veteran’s bilateral hearing loss unrelated to service because the STRs are negative for significant shift in hearing thresholds beyond test variability from entrance to separation, which is objective evidence of no permanent auditory damage on active duty from conceded noise. Additionally, the examiner stated, although the Veteran reported hearing loss within a few years after service separation, he did not seek treatment for a hearing loss disability until 2013-2014. The examiner noted these post-service reports of hearing loss came after exposure to recreational and occupational noise. The examiner concluded hearing loss is not caused by noise exposure alone, therefore there is not enough evidence to support a connection to relate current hearing loss to military noise exposure alone, and not another cause. In its most recent November 2020 remand, the Board found the February 2020 examination incomplete. The examiner, in stating “[t]here is not enough evidence to support a connection to relate current hearing loss to military noise exposure alone, and not another cause,” used the incorrect standard; thus invalidating the opinion for adjudication purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). Thus, the Board ordered an addendum opinion regarding the nature and etiology of the Veteran’s bilateral hearing loss disability. In a December 2020 LHI addendum, the examiner reviewed the Veteran’s claim and provided a negative nexus opinion. In arriving at this conclusion, the examiner stated the Veteran’s STRs indicate no significant permanent shift in hearing thresholds greater than normal measurement variability from entrance to separation, evidence of no permanent auditory damage on active duty. The examiner noted the Veteran’s post-service noise exposure, without the use of proper hearing protection. The examiner noted the Veteran’s report of onset of hearing loss was a few years after service, and he did not seek treatment until 2013. The examiner stated any noise exposure through the Veteran’s life would have to be considered in addition to military noise exposure, as well as other factors contributing for age related hearing loss. The Board has the responsibility of determining the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Upon review, and resolving any reasonable doubt in the Veteran’s favor, the Board finds the Veteran’s bilateral hearing loss is related to his in-service noise exposure. 38 C.F.R. § 3.102. As noted, the April 2014 VA examiner’s opinion was found to be inadequate by the Court, and the February 2020 LHI examiner’s opinion was found to be incomplete by the Board. Additionally, although the December 2020 LHI examiner found the Veteran’s bilateral hearing loss unrelated to service, the Board finds this opinion to be of diminished probative value. In this regard it must be clear the examiner has considered all procurable and assembled data prior to reaching such a conclusion. Jones v. Shinseki, 23 Vet. App. 382, 390 (2010) Specifically, the examiner did not address the Veteran’s competent and credible statements regarding in-service onset and continuity of his symptoms since service separation. Furthermore, the examiner did not consider the competent and credible statements provided by C.W. and L.W. Additionally, the Board notes, a negative etiological opinion based upon the lack of evidence of complaints or treatment for symptoms in a Veteran’s service treatment records is inadequate. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Moreover, entitlement to service connection for hearing loss does not require the criteria under 38 C.F.R. § 3.385 be met during service. Hensley, 5 Vet. App. 155. As the December 2020 medical opinion is inadequate, it cannot service as the basis of a denial of entitlement to service connection. As discussed above, the Veteran reported experiencing symptoms of hearing loss while in service. The Veteran is competent to report the onset and continuation of his hearing loss, and the Board finds his statements credible. See Layno, 6 Vet. App. at 470. The Board notes lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). After a careful review of the record, the Board finds the Veteran’s bilateral hearing loss had its onset in service due to hazardous noise exposure and has continued since that time. Walker, 708 F.3d at 1338. In this regard, the Veteran has competently and credibly indicated the onset of bilateral hearing loss during his military service, coincident with his duties as [Combat Support] Unit Clerk, and that he has continued to experience such symptoms since service. He is competent to report symptoms of hearing loss, as they are subject to and readily observable by laypersons, and the Board has no reason to doubt his credibility. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). Therefore, service connection for bilateral hearing loss is warranted. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Grace Johnk, 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.