Citation Nr: 21028566 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 14-37 214 DATE: May 11, 2021 ORDER Entitlement to service connection for hearing loss is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's bilateral hearing loss disability was caused by in-service acoustic noise exposure. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for bilateral hearing loss disability have been met. 38 U.S.C. §§ 1110, 1154(a), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Navy from January 1974 to January 1977 and from February 1982 to March 1986. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which, inter alia, denied the Veteran's claims for service connection for bilateral hearing loss and a prostate condition. Most recently, in November 2020, the claims were remanded by the Board to the agency of original jurisdiction (AOJ) for further development. The Board notes that during the pendency of the claims, in a March 2021 rating decision, the RO granted the service connection for a prostate condition. This represented a full grant of the benefits sought on appeal and this issue is no longer before the Board. Entitlement to service connection for bilateral hearing loss Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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 (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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. Certain chronic diseases, including organic diseases of the nervous system such as sensorineural hearing loss, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that his hearing loss is related to loud noise exposure while flying in a P-3 Orion in service without any hearing protection. The Veteran's service treatment records (STRs) did not indicate abnormal hearing or significant threshold shifts. In a December 2014 VA examination, the Veteran's speech recognition scores using the Maryland CNC Test were 88 percent in his right ear and 84 percent in his left ear. Thus, the Veteran has confirmed VA-defined hearing loss for both ears. Pursuant to the Board remand, VA medical opinion was obtained in February 2021. The examiner opined that the Veteran's hearing loss was less likely than not related to his active service. As rationale, he stated that all the audiograms from service and after service did not indicate that the Veteran had hearing loss until after 2011. Thus, he posited that such a late onset suggests that the Veteran's current hearing loss is not related to military noise exposure. However, the opinion is inadequate because it did not take account of the Veteran's lay statements. Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"). The Veteran has reported worsening hearing since service. Moreover, the absence of hearing loss disability in service is not in and of itself fatal to a claim for service connection for bilateral hearing loss disability. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Board finds that the Veteran's own lay statements regarding the onset of his hearing loss in service and continued diminished hearing since discharge from service are competent and credible. At his November 2017 Board hearing, the Veteran testified that he was exposed to very loud noises without any hearing protection during flights aboard a P-3 Orion in the Navy. Moreover, he stated that he was stationed right next to one of the aircraft's engines and would hear the engine roaring in his ears. The Veteran's service records confirm that his military occupational specialty (MOS) was aviation warfare systems radio operator (AW-7821). Moreover, the Veteran is service connected for tinnitus, and acoustic trauma is conceded. Given the competent and credible statements as to in-service noise exposure consistent with the nature and proximity of the Veteran's active service duties and experiences and hearing difficulties in and since service, the evidence is at least evenly balanced as to whether the Veteran's bilateral hearing loss is related to his in-service acoustic trauma. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for bilateral hearing loss is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) ("[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"). TRACIE N. WESNER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Kovacs, 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.