Citation Nr: 21026940 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 17-22 275 DATE: May 4, 2021 ORDER Entitlement to service connection for right ear hearing loss is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his right ear hearing loss is at least as likely as not related to his noise exposure in service. CONCLUSION OF LAW The criteria for service connection for right ear hearing loss are met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1969 to April 1972. This case comes before the Board of Veterans' Appeals (Board) from an April 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing conducted by the undersigned Veterans Law Judge in January 2020. Unfortunately, due to problems with the recording equipment, VA was unable to produce a transcript of the hearing. Correspondence was sent to the Veteran in August 2020 inquiring whether he desired a new Board hearing in conjunction with this appeal. In September 2021, the Veteran responded that he did not want another hearing and requested the Board consider his claim based on the evidence of record. Entitlement to service connection for right ear hearing loss The Veteran contends that he was exposed to loud noise during service. Specifically, the Veteran claims that he suffers from hearing loss in his right ear due to his military occupational specialty (MOS) of an auto mechanic. He additionally contends that he was exposed to loud noise while assisting an artillery unit while serving in the Republic of Vietnam. See April 2017 VA Form-9. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In order to prevail on the issue of service connection, there must be competent, credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus, or link, between the current disability and the in-service disease or injury and the present disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time that supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although a lay person is competent in certain situations to provide a diagnosis of a simple condition, a lay person is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). With respect to service connection claims for hearing loss, the Board notes that this particular disability is defined by regulation. Specifically, under the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the above frequencies 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. Additionally, the Board observes that precedential case law provides that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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. As an initial matter, the Board notes that the Veteran's MOS in service was a wheeled vehicle mechanic. Service connection has been awarded for left ear hearing loss and tinnitus as a result of in-service noise exposure. The existence of an in-service injury is not in dispute. The Veteran's service treatment records showed hearing loss for VA purposes in the Veteran's left ear. See March 1972 audiological examination and April 1972 separation examination. The Veteran was subsequently granted service connection for hearing loss in the left ear with tinnitus based on the significant loss of hearing in his left ear shown in service. The Veteran's post-service treatment records include VA treatment records from June 1978 showing that the Veteran had decreased hearing bilaterally. The Veteran was provided with a VA examination in April 2016 where he was noted to have bilateral sensorineural impairment. The examiner opined that "given normal earing IN THE RIGHT EAR on discharge audiogram and NO evidence of significant shift in thresholds from induction to discharge, hearing impairment is less likely as not (less than 50/50 probability) caused by or a result of military noise exposure." The Veteran was provided with another VA examination in June 2017 where he was found to have sensorineural hearing loss bilaterally. The examiner opined that the Veteran's right ear hearing loss was not at least as likely as not caused by his service because his "hearing thresholds at time of entrance and separation were within normal limits," adding that "a noise induced hearing loss will not progress once it is stopped." In an October 2017 VA addendum opinion, another VA examiner noted that the Veteran's enlistment and separation examinations showed normal hearing. The examiner added that there was "NO significant shift in thresholds in the right ear from enlistment to separation." The examiner concluded that "there is no medically sound basis for attributing the hearing loss to a service injury." She added that "right ear hearing impairment is less likely as not a delayed onset from the military," and cited to an Institute of Medicine study finding that "it is unlikely that such delayed effects occur." In contrast, in February 2020, the Veteran submitted private treatment records from January 2020 noting that the Veteran had "reported repeated exposure to artillery cannon fire and small arms fire without use of hearing protection," and "over time has developed problematic hearing loss bilaterally with associated tinnitus." The private examiner noted that since the Veteran's military service, "he has not had any ongoing chronic loud noise exposure either related to occupational duties or other recreational activities." The private examiner opined that the Veteran's "prior noise exposure in the military years ago is the cause for his severe hearing loss documented at this time." The Veteran has consistently asserted that he was exposed to loud noise while in service and that he suffers from bilateral hearing loss as a result. The Veteran is competent to report such symptoms as decreased hearing acuity that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). In addition, the Board notes that the VA has acknowledged the Veteran's in-service noise exposure. The Board also notes that the RO granted service connection for hearing loss in the left ear with tinnitus. Additionally, the Board finds that the January 2020 private medical opinion is probative medical evidence linking the Veteran's right ear hearing loss to his noise exposure in service. Resolving reasonable doubt in the Veteran's favor, the Board finds that there is sufficient persuasive evidence that the Veteran's current hearing loss in his right ear is related to his in-service noise exposure. Accordingly, service connection for hearing loss in the right ear is warranted. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morrad, 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.