Citation Nr: 21029026 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 19-34 707 DATE: May 12, 2021 ORDER Service connection for bilateral hearing loss is granted. FINDING OF FACT The Veteran's bilateral hearing loss cannot be satisfactorily disassociated from his service-connected tinnitus, which has been linked to the same in-service noise exposure. CONCLUSION OF LAW Resolving all doubt in the Veteran's favor, the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1957 to July 1965. This case is before the Board of Veterans' Appeals (Board) on appeal from a March 2016 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO, in pertinent part, denied entitlement to service connection for hearing loss and tinnitus. The Veteran's notice of disagreement with the denial of tinnitus was received in April 2016. It is not clear from that NOD whether the Veteran intended to also appeal the denial of service connection for hearing loss. The RO issued a statement of the case in January 2017, and the Veteran's VA Form 9, substantive appeal to the Board was received in January 2017. In a March 2017 statement, the Veteran provided argument in support of his claims for service connection for hearing loss and tinnitus. The RO responded to the Veteran in March 2017 that the Veteran had not yet appealed the denial of service connection for hearing loss, and that he should submit a VA Form 21-0958, NOD, if he wished to appeal the denial of service connection for hearing loss. The Veteran's notice of disagreement with the denial of hearing loss was subsequently received in April 2017, and the RO accepted the NOD as timely, as it was apparent that the Veteran attempted to appeal that determination with his earlier, April 2016 NOD. See April 20, 2017 Decision Review Officer (DRO) process request correspondence. Meanwhile, in a March 2018 decision, the Board granted service connection for tinnitus and remanded the claim of service connection for hearing loss to the RO, finding that the Veteran's April 2016 NOD should have been interpreted as an NOD with the denial of service connection for both tinnitus and hearing loss. Accordingly, the matter was remanded for the RO to issue a statement of the case addressing the issue of entitlement to service connection for bilateral hearing loss pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). The RO issued a statement of the case in October 2019. The Veteran's VA Form 9, substantive appeal to the Board, was received in November 2019. In July 2020, the Board again remanded the case to the RO for further development and adjudicative action. Entitlement to service connection for bilateral hearing loss. The Veteran contends that his bilateral hearing loss is directly related to his in-service noise exposure. Specifically, the Veteran asserts in his November 2019 Form 9: After completing aircraft and engine school, I was assigned as a flying crew chief on various type of propeller driven aircraft. On one assignment I was a flying crew chief on a C-47 aircraft for four years (extremely noisy). In the 1950s and 1960s ear protection was not yet thought of or provided. Therefore, I firmly believe that my hearing loss/tinnitus is a direct result of my being exposed to flight line noise and flying on propeller driven aircraft for all those years. Service connection may be granted when the evidence demonstrates that a current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 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. See 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). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third 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); sensorineural hearing loss is a qualifying chronic disease as such is included as an organic disease of the nervous system. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A Veteran's lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. §§ 3.303(a), 3.159(a); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Decreased hearing acuity is the type of symptom or disability capable of observation by a lay person. See also Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). Thus, a layperson is competent to report on the onset and continuity of his current symptomatology. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." See Savage v. Gober, 10 Vet. App. 488, 496 (1997) (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Impaired hearing is defined as a disability under VA law when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or 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. The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran's service treatment records are negative for findings, complaints or diagnosis of hearing loss. Audiograms throughout service showed hearing within normal limits bilaterally. On the authorized audiological evaluation in March 2016, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 30 60 70 LEFT 25 25 30 65 60 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 percent in the left ear. The average puretone threshold at 1000 through 4000 Hertz is 46 for the right ear and 45 for the left ear. On the September 2020 VA audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 35 50 65 75 LEFT 30 40 50 65 75 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 84 percent in the left ear. The average puretone threshold at 1000 through 4000 Hertz is 56 in the right ear and 58 in the left ear Both examinations show auditory thresholds greater than 40 decibels in at least one of the required frequencies, bilaterally. Thus, the evidence of record establishes that the Veteran currently has a bilateral hearing loss disability under VA regulations. 38 C.F.R. § 3.385. The record also establishes that the Veteran had in-service noise exposure. The Veteran's military occupational specialty (MOS) was aircraft mechanic. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). Based on his MOS, VA has conceded hazardous military noise exposure. See October 2020 Statement of the Case. The question remaining for the Board is whether the Veteran's current bilateral hearing loss is etiologically related to service, to include his in-service noise exposure and/or service-connected tinnitus. The March 2016 VA examiner found the Veteran's hearing loss was less likely as not caused by or a result of an event in military service. The examiner provided the following rationale: The Veteran's medical record noted normal bilateral hearing throughout his service with no significant threshold shifts. The Veteran did work as a machinist for approximately 5 years after his military service and he reports hearing protection was use[d] towards the end of his profession as a machinist. Therefore, it is less likely as not that this Veteran's hearing loss is the result of military noise exposure as the medical record does not support this claim in that normal bilateral hearing was noted throughout this Veteran's service. Conversely, as to the etiology of the Veteran's tinnitus, the examiner noted the date and circumstances of onset, "this Veteran reports tinnitus began in the service as a result of rifle fire and from propeller aircraft exposure," and opined as follows: The Veteran has a diagnosis of clinical hearing loss, and his or her tinnitus is at least as likely as not a symptom associated with the hearing loss, as tinnitus is known to be a symptom associated with hearing loss. In a July 2020 remand, the Board found the March 2016 VA examination inadequate as the examiner's rationale is conclusory and lacks supporting explanation. In this regard, the examiner failed to explain the significance of the lack of threshold shifts during the Veteran's service and why such a finding would mean that the Veteran's bilateral hearing loss disability was not caused by his service. The examiner also did not appear to consider the nature of the Veteran's noise exposure in service as described by the Veteran during his appeal. Further, the examiner provided conflicting information regarding the Veteran's post-service noise exposure, indicating at one point in the report that the Veteran only used hearing protection towards the end of this employment and indicating in a different part of the report that the Veteran used hearing protection throughout this employment. Further, in the July 2020 remand, the Board requested an addendum opinion and advised the subsequent examiner that, under applicable law, the absence of in-service evidence of a hearing loss disability is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The September 2020 VA examiner opined: Although the VA concedes hazardous military noise, the only evidence in the C-file to support a positive opinion is the claimant's military occupational specialty. His enlistment and separation exams were within normal limits, with no threshold shift at any frequency. The examiner's rationale is not adequate to support a finding that the Veteran's bilateral hearing loss is not related to active service. See Ledford, 3 Vet. App. 87, 89 (1992). Contrary to the instructions of the Board, the September 2020 examiner based the negative nexus opinion again on an absence of in-service treatment records and failed to address the Veteran's lay statements as to continuity of symptomology. Accordingly, both the March 2016 and September 2020 VA examiner opinions are afforded minimal probative value. Of more probative value in this case, is that the March 2016 examiner specifically linked the Veteran's hearing loss to the tinnitus, and then said that the tinnitus is as likely as not related to in-service noise exposure. The record shows that the Veteran experienced in-service noise exposure, and his credible lay statements indicate that he has been experiencing hearing related problems since service. In essence, the medical and lay evidence of record indicates that the Veteran's hearing loss disability cannot be satisfactorily disassociated from his service-connected tinnitus, which has been linked to the same in-service noise exposure. The evidence is therefore at least evenly balanced as to whether the Veteran's bilateral hearing loss is related to his in-service noise exposure. 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. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Ardalan, 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.