Citation Nr: 21027327 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 16-04 267 DATE: May 5, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, his bilateral hearing loss is related to service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.385 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1969 to December 1971 and from July 1976 to July 1980. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Lincoln, NE. In May 2019, the Veteran testified at a videoconference hearing at the VA Regional Office (RO) in Salt Lake City, UT, before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the electronic claims record. In a September 2019 decision, the Board remanded this issue for additional development, which has not been substantially completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran is seeking service connection for bilateral hearing loss. Specifically, he contends that as a combat engineer he experienced hazardous noise exposure and that he has experienced hearing loss since service. See May 2019 Board Hearing Transcript; August 2015 Correspondence. A veteran is entitled to VA disability compensation if there is a current disability resulting from a personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 U.S.C. § 1131; 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). To prevail on the issue of secondary service connection, the record must show evidence of a medical nexus establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including sensorineural hearing loss and tinnitus, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. See Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Following a review of the evidence of record and based on the applicable legal criteria, for the reasons detailed below, the Board finds that service connection for bilateral hearing loss is warranted. Regarding the first and second elements of service connection, the Veteran currently experiences bilateral hearing loss and the Agency of Original Jurisdiction (AOJ) has conceded hazardous noise exposure during service. See November 2020 VA Examination; December 2015 Statement of the Case. As such the first and second elements of service connection have been met. As for the third element of service connection, evidence of a nexus between the Veteran's bilateral hearing loss and service, following a review of the record the Board notes that the evidence of record consists of competent, consistent, and credible statements from the Veteran and conflicting medical opinions regarding the likely etiology of the Veteran's bilateral hearing loss. Specifically, in an August 2015 correspondence, the Veteran asserted that he was exposed to hazardous noise in Vietnam as part of his duties. He was exposed to demotion explosions, aircrafts, diesel engines, automatic weapons fire, and additional hazardous noises during Airborne qualifications as a paratrooper, without hearing protection. He has not experienced any noise of this intensity since service and has had hearing difficulty since leaving service. See also May 2019 Board Hearing Transcript. In October 2015 and November 2020 VA examinations, however, examiners opined that the Veteran's bilateral hearing loss was less likely than not related to service. The October 2015 examiner explained that the Veteran had normal hearing at discharge and no significant shift in thresholds during service and as such his hearing loss was not related to service. Similarly, the November 2020 VA examiner explained that the Veteran's military occupational specialty as a combat engineer has a "low probability" of hazardous noise exposure and had no hearing loss at separation and as such his hearing loss is not related to service. The Board is mindful of the conflict between the Veteran's lay statements regarding the continuity of his bilateral hearing loss symptoms since service, and the October 2015 VA and November 2020 medical opinions against a causal nexus. The Board acknowledges that the Veteran is competent to report experiencing in-service hazardous noise exposure and auditory pathology in the form of bilateral hearing loss. There is also no evidence in the record to suggest that the Veteran's statements are not credible. See Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that a Veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge); Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, the Board finds that competent and consistent statements of the Veteran credible and of probative weight. The Board also notes that the October 2015 and November 2020 VA medical opinions are inadequate for adjudicative purposes and of little probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Specifically, the October 2015 examiner relied only on threshold shifts and failed to consider the Veteran's conceded noise exposure and competent lay assertions. Similarly, the November 2020 examiner relied only on threshold shifts and failed to consider the Veteran's competent lay assertions. He also based his opinion on an inaccurate factual premise by asserting that the Veteran had a low probability of noise exposure during service, despite the AOJ having conceded that the Veteran was exposed to hazardous noise during service. Based on the foregoing, the evidence of record is, at the very least, in relative equipoise as to whether the Veteran's bilateral hearing loss is etiologically related to active duty service. Resolving reasonable doubt in the Veteran's favor, the Board finds the third element of service connection, that of a causal nexus, has been met. (Continued on the next page) Accordingly, the three elements of service connection have been met and the claim of entitlement to service connection for bilateral hearing loss is granted. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Kaufer, 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.