Citation Nr: 21025298 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 14-01 067 DATE: April 27, 2021 ORDER Entitlement to service connection for a bilateral hearing loss disability is granted. FINDING OF FACT The evidence is in equipoise as to whether the Veteran’s hearing loss disability had onset during his period of active duty service. CONCLUSION OF LAW Resolving all doubt in the Veteran’s favor, the criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1953 to October 1954. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision. The Veteran appeared before the undersigned at a videoconference hearing in May 2017. In August 2017, the Board awarded service-connection for tinnitus and remanded the claim for bilateral hearing loss for further development. Entitlement to service connection for a bilateral hearing loss disability is granted. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113 (b); 38 C.F.R. § 3.303(d). Throughout the period on appeal, the Veteran has consistently asserted that his current bilateral hearing loss disability, confirmed on examination in May 2013, started during his period of active duty service, and is directly related to in-service acoustic trauma. At the outset, the Board notes that, aside from the October 1954 separation report of medical examination that included only whisper test results, the Veteran’s service treatment records are unavailable, as they are likely fire-related (i.e., destroyed in a fire at NPRC in St. Louis, Missouri, in 1973). See, e.g., January 2013 Memorandum. The Board is aware that when service records are unavailable through no fault of a veteran, it has a heightened duty to assist, as well as an obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005), Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board’s analysis of the Veteran’s claim has been undertaken with these heightened duties in mind. In a prior August 2017 decision, the Board awarded service connection for tinnitus, finding the Veteran’s descriptions of in-service noise exposure and experiencing in-service symptoms of tinnitus both competent and credible. The Board notes that both 2013 and 2018 VA examiners determined that the Veteran’s tinnitus was likely associated with his hearing loss. Concerning in-service noise exposure, the Veteran has described his in-service duties in several statements of record, to include in a March 2012 statement, in April 2012 correspondence, on his September 2013 notice of disagreement, and during his hearing before the Board. The Veteran noted that, as an Army Security Agency (ASA) trainee, he spent 16 weeks in heavy weapons training, after which he began noticing hearing loss. Later, he trained at a special 8-week leadership school on how to use 75mm recoilless weapons, judo, 45 calibers and piano wire. He stated that the loud continuous noise from firing weapons in preparation for the Korean War, and the excessive noise exposure from weapons, mortars, tanks, and artillery pieces in Korea all affected his hearing. He stated that hearing protection was never issued, used, or required. The Veteran has also asserted that if his service treatment records had not burned in a fire, they would show documented complaints of, and treatment for hearing problems during service, as he asserts he did report them at the time. In its August 2017 decision, the Board remanded the Veteran’s hearing loss claim so that an adequate medical opinion addressing the etiology of the disability could be obtained. The Board deemed a prior negative nexus opinion from a 2013 VA examiner inadequate, as it was based largely on an observation that hearing loss was not documented in service records (which as noted above, are unavailable for review). In an effort to obtain an adequate opinion, the Board requested that a new opinion provider accept the Veteran’s explanation that he was exposed to excessive noise during his time in service, and assume as true that the Veteran sought treatment for hearing loss issues during service, as he so described. In a May 2018 opinion, a VA examiner opined against a relationship between the Veteran’s bilateral hearing loss disability and his military service. At the time of the examination, the Veteran did not volunteer much information about his military noise exposure, based on its classified nature. As a result, the examiner appeared to discount any assertion that hearing loss began during service based on lack of evidence showing any problems until 1981. The examiner generally stated that there is no delayed onset of hearing loss, if due to noise exposure. It does not appear that the examiner accepted or even acknowledged the Veteran’s prior descriptions of in-service noise exposure that were found elsewhere in the record, and summarized in the prior Board remand. Moreover, the examiner did not accept as true for purposes of providing the opinion the Veteran’s competent report that he did in fact seek treatment for hearing loss during service. The opinion is accordingly afforded no probative value. Since the May 2018 VA examination, the Veteran’s representative has supplied additional research suggesting that impulse or continuous loud noise can cause residual long-term damage to hearing, and calling into question the May 2018 VA examiner’s determination that delayed onset hearing loss does not occur when hearing loss is noise-induced. Upon review of the Veteran’s complete record, the Board finds that ordering further development in this case in an attempt to obtain an adequate medical opinion addressing the etiology of the Veteran’s hearing loss would be an exercise in futility, given that two prior examiners have been unable to provide an adequate opinion, and given the fact that the Veteran’s service treatment records are missing. As discussed above, the Veteran has a current bilateral hearing loss disability for VA purposes, and he has competently and consistently described onset of that disability during his period of active duty service. The Board accepts as credible the Veteran’s reports of in-service noise exposure in performance of his duties and his training, and has already made a finding in a prior decision that the Veteran’s reports of in-service tinnitus were also credible. The Board finds no reason to call into question the Veteran’s report that if VA had been able to obtain his service records, they would include documented complaints for hearing problems, as he asserts that he sought care for hearing loss during that time period. The more recent evidence includes lay statements from others attesting to observing the Veteran experience trouble with his hearing ability for decades. Although the May 2018 VA examiner assumed that the Veteran’s hearing loss had onset after service, the Board finds the Veteran’s lay assertions of not only experiences hearing issues during service, but also seeking treatment for the same, to be credible. Moreover, both the 2013 and 2018 VA examiners believed the Veteran’s tinnitus is associated with his hearing loss. If true, it would follow that hearing loss existed at the time tinnitus began, which as the Board found in its prior decision, was at least as likely as not during active duty service. Based on all of these factors, the Board finds the evidence of record to be at least in equipoise as to the whether the Veteran’s bilateral hearing loss disability had onset during service. Resolving all doubt in the Veteran’s favor, the benefit sought on appeal is granted based on in-service incurrence. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Crohe, 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.