Citation Nr: 21028435 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 13-31 812 DATE: May 11, 2021 ORDER Service connection for right ear hearing loss is granted. FINDING OF FACT The Veteran was exposed to acoustic trauma during active service, and, resolving all doubt in his favor, has experienced symptoms of right ear hearing loss, gradually, or continuously, since separation from service. CONCLUSION OF LAW The criteria for service connection for right ear hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1972 to September 1972. The Veteran testified at a hearing before a Veterans Law Judge (VLJ) of the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) in April 2015. The VLJ who presided at that hearing was no longer at the Board and the Veteran was afforded an opportunity to testify at another Board hearing, which was held before the undersigned VLJ in April 2019. Transcripts of both hearings are of record. The Board remanded this matter to the VA Regional Office (RO) in June 2015, May 2019, and most recently, in November 2020, for additional development; the claims file has been returned to the Board for adjudication. Entitlement to service connection for right ear hearing loss. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Alternatively, continuity of symptomatology may be established if a claimant can demonstrate: (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology under 38 C.F.R. § 3.303 (b); Barr v. Nicholson, 21 Vet. App. 303 (2007). Where a claimant asserts entitlement to a chronic condition but there is insufficient evidence of a diagnosis in service, he can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309 (a), including neurological disorders such as hearing loss. Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). Such chronic diseases are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1110, 1112; 38 C.F.R. §§ 3.307, 3.309(a). Impaired hearing will be considered a disability when, in pertinent part, the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater. 38 C.F.R. § 3.385. This regulation does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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 claimant is competent to report on that of which he or she has personal knowledge). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). During his April 2019 Board hearing, the Veteran attributed his right ear hearing loss to his in-service experience during which he was near an explosion of a 50- caliber machine gun, that he was bringing ammunition to reload the machine gun and it jammed and exploded. He reported loss of consciousness and when his representative asked him if he had experienced issues with his hearing since that time, the Veteran answered in the affirmative. In June 2015, the Board granted service connection for left ear hearing loss and tinnitus on the basis that in-service noise exposure as described by the Veteran was conceded and an August 2013 private opinion attributing his left ear hearing loss and tinnitus to his in-service noise exposure was probative evidence in support of the Veteran's claims. At that time, it was not yet certain if the Veteran had right ear hearing loss considered a disability for VA compensation purposes under 38 C.F.R. § 3.385. The Veteran's service treatment records are silent for complaint, treatment, or diagnosis of right ear hearing loss. No party asserts otherwise. The Veteran's service separation form, his DD-214, is illegible as to his military occupational specialty (MOS). The Veteran's lay statements as to in-service noise exposure related to ammunition are competent, as he is able to describe the circumstances of his own service. See Layno, 6 Vet. App. 465, 470. There is no evidence that the Veteran is not credible in this regard and considering that such lay statements have been consistent for many years beginning shortly after separation from service, the Board concedes that the Veteran experienced acoustic trauma from aircraft during service. As noted, the Board, in its June 2015 decision, conceded the Veteran's in-service noise exposure as described. Results of private audiometric testing dated in December 1974 are of record; silent for right ear hearing loss considered a disability for VA compensation purposes under 38 C.F.R. § 3.385. During private treatment in January 1975, soon after discharge from service, the Veteran was seen for left ear hearing loss for the past two years and reported an in-service explosion. He also reported occasional difficulty hearing in the right ear. In a November 1975 hearing before a Decision Review Officer (DRO) at the RO, the Veteran reported that "trouble with his ears" came later after his in-service experience near the machine gun explosion, that his ears were bleeding in the hospital. During private treatment in August 2013, the Veteran reported that he had pain in his ears right after he left service, and had occasional drainage and discharge since service. During private treatment in May 2019, the Veteran reported bilateral, slowly progressing hearing loss first noticed 40 years prior. During a November 2019 VA audiological Disability Benefits Questionnaire (DBQ), the Veteran demonstrated pure tone thresholds, in decibels, in the right ear of 25, 40, 50, 60, and 65, measured at 500, 1000, 2000, 3000, and 4000 Hertz, respectively. There is evidence of auditory thresholds of 40 decibels or greater in at least one of the specified frequencies, and the Veteran's right ear hearing loss thus meets the VA requirements for consideration as a disability. 38 C.F.R. § 3.385. The VA examiner, in November 2019, opined that the Veteran's right ear hearing loss was not likely related to his in-service noise exposure, reasoning that while there was no evidence of the Veteran's right ear hearing acuity measured at the time of his separation from service, he demonstrated right ear hearing acuity within normal limits during private treatment in December 1974. In a December 2020 addendum opinion, the examiner further reasoned that the Veteran's right ear hearing acuity was also measured in August 2015, many years after separation from service, and was within normal limits. He discussed that studies show that the most pronounced effects of a given noise exposure are measurable immediately after the exposure and there is no sufficient evidence from longitudinal studies to shows that permanent noise-induced hearing loss develops from delayed effects of the exposure long after its cessation. The VA examiner, in considering whether the Veteran's right ear hearing loss is etiologically related to service, did not appear to consider the Veteran's lay statements as to the gradual onset of decreased right ear hearing acuity, difficulty with hearing in the right ear in as early as January 1975, trouble with hearing after the in-service incident with the machine gun explosion, or his reported in-service bleeding from the ear or post-service pain and draining and discharge. The opinions are thus of little probative value. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). The Veteran is competent to report right ear symptoms, including the sensation of decreased hearing acuity since service and there is no evidence that he is not credible in this regard. Layno, 6 Vet. App. 465, 470. In this regard, the Veteran has reported his post-service right ear symptoms, including difficulty hearing, in as early as January 1975, soon after separation from service. While he had not described such as continuous, the Board resolves all doubt in his favor and finds that his statements are sufficient to serve as lay statements of continuous symptoms since separation from service. It is significant that he had been treated for severe left ear hearing loss for many years, beginning soon after separation from service, and may have indeed considered that to be the most severe problem and that his right ear hearing acuity, while diminished or diminishing, did not warrant attention until many years after separation from service. No useful purpose would be served in remanding this issue for the fourth time to the RO to seek clarification from the Veteran. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit to the Veteran. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Based on the forgoing, there is probative evidence of current right ear hearing loss that comports with VA standards to be considered a disability under 38 C.F.R. § 3.385, probative evidence of in-service acoustic trauma, and, resolving all doubt in favor of the Veteran, gradual, or continual, symptoms of right ear hearing loss since separation from service. 38 U.S.C. §§ 1110, 1112; 38 C.F.R. §§ 3.307, 3.309, 3.385; Walker, 708 F.3d 1331, at 1337-39. The Board thus finds that service connection for right ear hearing loss is warranted. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Department of Veterans Affairs 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.