Citation Nr: 21026974 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 16-18 850 DATE: May 4, 2021 ORDER Entitlement to service connection for hearing loss of the right ear is granted. FINDING OF FACT The Veteran's hearing loss of the right ear was at least as likely as not incurred during service. CONCLUSION OF LAW The criteria for entitlement to service connection for hearing loss of the right ear are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U.S. Army on active duty from February 1971 to March 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision issued by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In July 2019, the Board denied the Veteran's service connection claim for hearing loss of the right ear. The Veteran appealed this denial to the Court of Appeals for Veterans Claims (CAVC or the Court), which in August 2020, on the basis of a Joint Motion for Remand (JMR), vacated the Board's July 2019 denial and remanded the matter for further consideration. The Board in turn remanded the appeal to the Agency of Original Jurisdiction (AOJ) in January 2021 for a VA examination, consistent with the terms of the JMR. Although the Board finds the January 2021 opinion inadequate, remand is not warranted in light of the grant of service connection. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Entitlement to service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004)). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, to include hearing loss, are presumed to have been incurred in service if manifested to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease under 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). VA has determined that hearing loss is a chronic disability. Service connection may also be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection must be considered on the basis of the places, types, and circumstances of his service as shown by his service records, the official history of each organization in which he or she served, his or her medical records, and all pertinent medical and lay evidence. See 38 C.F.R. § 3.303(a); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) and Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay 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, 492 F.3d at 1377; and Buchanan, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). For the purposes of applying 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 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. Entitlement to Service Connection for Hearing Loss The Veteran maintains that he has hearing loss of the right ear that is related to acoustic trauma in service. The Board agrees and finds that service connection for bilateral hearing loss is warranted. With respect to current disability, VA examinations conducted in January 2013 and February 2021 demonstrate the existence of a current disability of bilateral hearing loss as defined by 38 C.F.R. § 3.385. For the purposes of applying 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 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. Here, the Veteran's auditory threshold surpassed 40 at most frequencies in the right ear in the January 2013 VA examination. Thus, a current hearing loss disability is established. With regard to in-service incurrence, the Veteran asserts that this hearing loss disability is related to exposure to acoustic trauma during service. The Veteran reported firing weaponry as a combat engineer. He also reported an event that occurred in March 1971 during basic training where his right ear plug fell out while firing a World War II era bazooka. He indicated that the explosion made a lot of noise and he could not hear out of his right ear for several weeks. The Board notes that the Veteran is competent to report symptoms and observable events within the realm of his personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470-471 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Furthermore, the Board finds no reason to doubt the credibility of these statements. Military personnel records reveal that the Veteran's military occupational specialty (MOS) was a combat engineer and that he received a sharpshooter M-16 award during service. Accordingly, the Board finds that the Veteran's competent and credible lay statements sufficiently establish the in-service incurrence element of this claim. The remaining question is whether there is a nexus between the Veteran's in-service incurrence and his current hearing loss. The record contains two negative VA examiner opinions addressing a nexus, but neither opinion considers all the relevant evidence pertaining to the claim. In January 2013, a VA examiner concluded that the Veteran's current hearing loss is less likely than not caused by or a result of an event in military service. This opinion is based solely on an absence of treatment for hearing loss during service and a normal audiogram at separation. The VA examiner failed to consider the Veteran's exposure to acoustic trauma during service. Accordingly, this opinion is based on an inaccurate factual premise and is inadequate. See Reonal v. Brown, 5 Vet. App. 548 (1993). In February 2021, another VA examiner also concluded that the Veteran's hearing loss was less likely as not incurred in or caused by the claimed in-service stressor. The examiner conceded that the Veteran's MOS involved a high probability of noise exposure. However, she concluded that the Veteran's reports of noise exposure from a bazooka was not supported by the record. She reasoned that the Veteran would have experienced immediate and significant hearing loss with exposure to an explosion of that magnitude. However, the she failed to consider the Veteran's reports that he did in fact lose hearing completely in his right ear for several weeks after firing the bazooka. Accordingly, this opinion is also based on an inaccurate factual premise and is inadequate. See Reonal v. Brown, 5 Vet. App. 548 (1993). Furthermore, the Veteran reported during primary care and audiology visits that he has had hearing loss since he fired the bazooka in 1971. The Board finds that the Veteran is competent to report the onset and continuity of his symptoms. 38 C.F.R. § 3.303(a); see also Jandreau, 492 F.3d at 1377. Moreover, the Board finds no reason to doubt the credibility of these statements. The Veteran's statements were made during the course of treatment and these statements are consistent with those he has made throughout his appeal. Given that there is no adequate negative opinion, the competent and credible statements made by the Veteran is the most probative evidence of record. See 38 C.F.R. § 3.303(a) (service connection must be considered on the basis of the places, types, and circumstances of his service as shown by his service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence); see also Buchanan, 451 F.3d at 1335 ("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself"). Accordingly, the Board finds that the most probative evidence establishes a nexus between service and the Veteran's current hearing loss of the right ear. In sum, the weight of the evidence supports finding that the Veteran's hearing loss of the right ear was incurred during his active service, and service connection is granted. 38 C.F.R. §§ 3.102; 3.303(a), (d). GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Beech, 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.