Citation Nr: 21025750 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 18-46 120A DATE: April 28, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his bilateral hearing loss is at least as likely as not related to noise exposure experienced during his active service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2019).  REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1960 to June 1963. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in September 2020. A transcript of the hearing is associated with the electronic claims file. The Board issued a prior remand on this claim in October 2020. Service Connection Generally, to establish service connection 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.” Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d).   VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).   Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336–37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  1. Entitlement to service connection for bilateral hearing loss. The Veteran first filed an application requesting service connection for bilateral hearing loss in February 2016. He was given a VA examination for such in April 2016. Here, the examiner opined that it was less likely than not that his bilateral hearing loss was due to his active service, stating “Veteran showed normal bilateral hearing ability on both military entrance and separation hearing tests with no significant threshold increased during service.” Based on this opinion, the RO issued an April 2016 rating decision denying service connection for bilateral hearing loss. The Veteran appealed this issue up to the Board. In July 2019 the Veteran’s representative submitted an informal hearing presentation arguing that the Veteran’s claims should be remanded due to an inadequate VA examination. Specifically, the Veteran’s representative contended that the April 2016 VA examiner relied on only the absence of evidence within the Veteran’s file in forming a negative opinion regarding etiology, and that the examiner failed to consider the Veteran’s actual military noise exposure. At his September 2020 hearing, the Veteran testified that he served as an infantryman and was a machine gunner stating “I always had to feed the M60 machine gun with bullets. And I always had a blast in my ears with machine gun firing all the time.” The Veteran testified to machine gun noise for two years. Moreover, the Veteran also testified to C-130 airplane noise and helicopter noise exposure. A review of the Veteran’s service records shows his military occupational specialty (MOS) was that of a light weapons infantryman. In the September 2018 statement of the case, the RO wrote “Service records show your MOS of infantryman which was highly probable for hazardous noise exposure.” As the prior VA examiner did not address the Veteran’s military noise exposure, the Board remanded the claim in October 2020 to obtain an addendum opinion. The Veteran was given another VA examination for his bilateral hearing loss in December 2020. Here, the examiner again opined that his bilateral hearing loss was less likely than not due to his in-service noise exposure. In support of her opinion, the examiner wrote “The Veteran served in the Army 12 Sept 1960 – 12 June 1963. The Veteran’s MOS was that of infantry with high probability for noise exposure. The Veteran earned the parachutist badge. An exam upon enlistment dated 8 Aug 1960 contains only a whisper test. Upon separation, an evaluation dated 28 May 1963 indicated hearing within normal limits in both ears, even after conversion from ASA to modern ANSI standards. There is no report of complaint/treatment for hearing decrease in service treatment records or at separation. Although noise exposure is conceded and the relationship of noise exposure, auditory damage and hearing loss is well-established, auditory damage and hearing loss are not conceded based on noise alone. There must be a nexus of auditory damage to relate current hearing loss to military noise exposure and not another etiology. The evidence is against the nexus in this case. Therefore, it is less likely than not that the Veteran’s hearing loss is caused by or the result of military noise exposure.” The examiner also opined that there was no permanent positive threshold shift in either ear (despite the Veteran only being given a whisper test on his entrance exam), and no hearing loss existed prior to service. Finally, the examiner noted that the Veteran had no noise exposure prior to his military service and no noise exposure after his military service. The Board notes that despite the negative nexus opinion regarding the Veteran’s bilateral hearing loss, the same examiner opined that the Veteran’s tinnitus was at least as likely as not related to his in-service noise exposure, in part due to his hearing testimony regarding such. In an April 2021 informal hearing presentation, the Veteran’s representative again argues that the claim should be remanded, writing “Veteran argues that the December 2020 opinion is inadequate because (1) the examiner did not follow the Board’s 2020 remand instructions, (2) the examiner relied on a lack of service treatment records to formulate the negative opinion, and (3) the examiner failed to provide an etiological opinion regarding the Veteran’s hearing loss. Therefore, Veteran requests remand to obtain a new examination for hearing loss.” The Board finds that another remand is not necessary and instead the claim should be granted resolving reasonable doubt in favor of the Veteran. First, the Veteran has established a current disability of bilateral hearing loss. Secondly, in-service noise exposure has been conceded. Thirdly, the December 2020 VA examiner noted no noise exposure prior to the Veteran’s military service or after his military service, and failed to provide an explanation as to what the Veteran’s current bilateral hearing loss might be due to, rather than his conceded in-service military noise exposure. At his September 2020 Board hearing, the Veteran testified “I’ve always, my whole life, I’ve always been hard of hearing since the service.” He further testified that despite the hearing difficulties that he experienced during service “I never complained because in the service, you, you weren’t supported to go on sick call. I mean, you were looked down as if you were a slacker if you went on sick call and I never complained about my hearing. And no one else did either because if you did, you were a slacker. It didn’t go well with you.” Moreover, the Veteran’s wife, who has known him for approximately 40 years also testified that the Veteran has had hearing difficulties for as long as she has known him. The Veteran is competent to offer testimony on medical matters, such as describing lay observable symptoms like hearing difficulties. Jandreau, 492 F.3d 1372. While the December 2020 examiner seems to have accepted the Veteran’s hearing testimony with regard to his tinnitus, no such discussion was provided regarding the Veteran’s testimony on his bilateral hearing loss. Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan, 451 F.3d 1331, 1336–37. The Veteran only underwent whisper and spoken tests upon enlistment, which are not considered an accurate measure of hearing acuity. The Board finds that resolving reasonable doubt in favor of the Veteran, his bilateral hearing loss is at least as likely as not due to his in-service noise exposure. Accordingly, entitlement to service connection for bilateral hearing loss is granted. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Ruiz, 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.