Citation Nr: 21029137 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 18-00 766 DATE: May 12, 2021 ISSUE Entitlement to service connection for a bilateral hearing loss disability. REMANDED Entitlement to service connection for a bilateral hearing loss disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from August 1984 to March 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. By way of background, the Veteran filed a claim for entitlement to service connection for bilateral hearing loss in October 2015. The Veteran's claim was denied in a rating decision from July 2016. The Veteran requested reconsideration, and an additional rating decision was issued in October 2016. He then filed a timely Notice of Disagreement (NOD), which was received by VA in August 2017. He was issued a statement of the case in November 2017, and he filed a VA Form 9 in December 2017. The Veteran's claim was certified to the Board in April 2018. The Veteran then appeared before the undersigned Veterans Law Judge in a Travel Board hearing in January 2021 to present testimony on the issue on appeal. A transcript of the hearing has been associated with the Veteran's claims file. The Board finds that additional evidentiary development is required before the claim on appeal is adjudicated. Entitlement to service connection for a bilateral hearing loss disability is remanded. The Veteran contends that he has a bilateral hearing loss disability that is due to his active duty service. To establish an entitlement to service connection, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence 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. 38 C.F.R. § § 3.303(a). With respect to claim for service connection for hearing loss, impaired hearing will be considered a disability when: (1) the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; (2) the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or (3) speech recognition scores using the Maryland CNC Test are less than 94 percent. 38C.F.R. §3.385. The threshold for normal hearing is from 0 to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay 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). As indicated above, the Veteran was given a hearing before the undersigned in January 2021. During the hearing, the Veteran testified that his hearing loss symptoms began in service, as his military occupational specialty (MOS) was initially infantryman, followed by being a "Bradley Gunner." He was given regular firearms training with the "turret ... with the 25-millimeter main gun," and that he was not given adequate hearing protection. The Veteran also testified that since his most recent VA examination, where a diagnosis of bilateral hearing loss was not found for VA purposes, his hearing has gotten worse. The Veteran is competent to report the symptoms he experiences, such as those associated with his hearing loss, as well as that which he experienced in service. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran's DD-214 and military personnel records confirm that his military occupational specialty (MOS) was as an infantryman. He has also received the Expert Badge in for Rifle and Hand Grenades. Considering the Veteran's MOS and badges, coupled with his competent testimony, the Board finds that he has met the second criteria for entitlement to service connection, as his exposure to hazardous noise while on active duty can be conceded. 38 C.F.R. § § 3.303(a). Turning to the available medical evidence, the Veteran was seen for a VA examination in August 2016. The VA examiner had access to the Veteran's claims file and conducted an in-person audiological evaluation. The following table indicates the decibel loss at the pure tone threshold for each ear. HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 15 10 30 LEFT 20 20 25 20 20 Speech discrimination was found to be 94 percent in both the right and left ear. The examiner noted a diagnosis of sensorineural hearing loss for each ear, however the Board notes that the measurements provided do not reach the threshold for a bilateral hearing loss disability for VA purposes. See Hensley, Id. Having said that, the Board recognizes that the Veteran testified in January 2021 that his hearing has worsened since that VA examination, possibly to the point of being severe enough as to have hearing loss for VA purposes. See January 2021 Board Hearing. As such, affording the Veteran the benefit of the doubt, the Veteran's claim should be remanded so that he may be given a VA audiological examination to confirm whether or not he has a current diagnosis of bilateral hearing loss for VA purposes. See further, Schafrath v. Derwinski, 1 Vet. App. 589 (1995); 38 U.S.C. § 5103 (A); 38 C.F.R. § 3.159. The matters are REMANDED for the following action: 1. Make appropriate efforts to obtain and associate with the claims file any further private or VA medical records identified and authorized for release by the Veteran. 2. Schedule the Veteran for VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to assess the nature and etiology of the Veteran's claimed bilateral hearing loss disability. The entire record must be reviewed by the examiner. All necessary tests should be conducted. Based on the examination results and the review of the entire claims folder, the examiner is asked to opine as to the following: (a.) Confirm the current diagnosis of the Veteran's bilateral hearing loss disability. For any currently diagnosed disability, provide an opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran's bilateral hearing loss is causally related to, or aggravated by, his military service. Any opinion should include a complete rationale. The examiner is reminded that the Veteran has provided competent lay statements and testimony regarding his in-service noise exposure, which has been confirmed by the Board. The examiner is also reminded that the lack of a demonstrated hearing loss disability in service "does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service." See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). A detailed rationale for the opinions must be provided. The examiner are reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required or the examiner does not have the needed knowledge or training). Jones v Shinseki, 23 Vet. App. 382 (2010). 3. After completing the above and ensuring that any other appropriate development of those claims is complete, readjudicate the Veteran's claim of entitlement to service connection for a bilateral hearing loss disability. If the benefit on appeal remains denied, issue a supplemental statement of the case (SSOC) to the Veteran and his Representative, and allow an appropriate time for response. Thereafter, the case should be returned to the Board, if otherwise in order. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Mulrain, 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.