Citation Nr: 21027799 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 18-17 225 DATE: May 6, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT Giving him the benefit of the doubt, the Veteran has bilateral hearing loss that is etiologically related to his active duty service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Air Force from September 1965 until February 1969. This matter is on appeal to the Board of Veterans' Appeals from a June 2016 Department of Veterans Affairs (VA) regional office (RO) rating decision. In October 2019, the Veteran participated in a hearing before the undersigned; a transcript is associated with the claims file. In December 2019, the Board remanded this claim for an adequate VA examination. 1. Entitlement to service connection for bilateral hearing loss is granted. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Finally, 38 U.S.C. § 1154(a) requires that VA give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, [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 v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Veteran asserts that he has bilateral hearing loss as a result of in-service noise exposure. The Veteran's in-service noise exposure was conceded by the Board in the December 2019 remand. Post-service treatment records show complaints of, and treatment for, hearing loss. The Veteran was afforded a VA examination in June 2016. The VA examiner provided a negative opinion with respect to whether the Veteran's hearing loss was related to service. The VA examiner in part based these opinions on the fact that the Veteran's MOS had a low probability for hazardous noise exposure, and the record did not reflect any complaints of hearing loss for 40 years after separation from service. The Board remanded this claim for an additional VA examination and medical opinion, which was obtained in August 2020. Therein, the VA examiner opined that the Veteran's bilateral hearing loss was less likely than related to service, again reasoning that his MOS of supply officer had a "low probability of hazardous noise" exposure and because there was no significant permanent shift in hearing thresholds from entrance to separation. In support, the VA examiner cited to an Institute of Medicine report (Noise and Military Service, September 2005) which partly concluded that noise induced hearing loss occurs immediately. The VA examiner noted that the Veteran's bilateral hearing loss was consistent with advancing age. The Board finds these examinations inadequate. First, similar to the January 2016 VA examination, the August 2020 VA examiner again appeared to misunderstand the Veteran's MOS as supply officer, as it placed him on the flight line of many air bases where he was exposed to excessive noise from jet and propeller aircraftand not simply exposed to munitions training. In other words, in this case, his MOS did not have a "low probability of hazardous noise." As previously stated in the December 2019 Board decision, a medical opinion based on an inaccurate factual premise is not probative. See Reonal v. Brown, 5 Vet. App. 458 (1993). Second, the August 2020 VA examiner's reliance on the IOM report addressing military noise exposure and hearing loss is misplaced as the study was inconclusive and contained several qualifying and contradictory statements regarding the conclusion it proposed. See McCray v. Wilkie, 31 Vet. App. 243 (2019). Third, the VA examiner did not expressly consider the Veteran's lay reports that his hearing loss began in service and continued after separation. At the October 2019 hearing, the Veteran testified to this and additionally stated that he was not encouraged to seek treatment for his hearing loss while in the military. The Veteran reiterated this argument in an October 2020 lay statement. The Board thus finds these opinions are not persuasive. The Court has specifically held that a Veteran's normal hearing at separation does not necessarily indicate that the Veteran experienced no in-service loss of hearing acuity. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). In light of the Veteran's credible statements and testimony regarding in-service noise exposure and his difficulty hearing beginning shortly after service separation continuing to the present, and his current diagnoses of hearing loss, the Board gives the Veteran the benefit of the doubt and finds that service connection for bilateral hearing loss is warranted. Further discussion of the evidence is simply not warranted. Caroline Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Finelli, 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.