Citation Nr: 21029352 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 16-52 485 DATE: May 13, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT The Veteran's bilateral hearing loss is etiologically related to his service. CONCLUSION OF LAW The criteria to establish service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1963 to July 1965. He appeals a March 2014 rating decision by the Agency of Original Jurisdiction (AOJ). This case was previously before the Board. Most recently in December 2020, the Board remanded the Veteran's claim to the AOJ for further action consistent with the Board's remand directives. The claim is back before the Board for further appellate proceedings. A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Under 38 C.F.R. § 3.303(b), claims for chronic diseases enumerated in 38 C.F.R. § 3.309(a) benefit from a relaxed evidentiary standard. See Walker v. Shinseki, 708 F.3d 1331, 1339 (Fed. Cir. 2013). Hearing loss is such a disease. To show a chronic disease in service, the record must contain a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). A Veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111. To rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The Veteran has bilateral hearing loss for VA purposes and was exposed to loud noises in service. See January 2021 VA examination report. Therefore, the first two Shedden elements are met. As a preliminary matter, the Board notes that the Veteran's August 1963 induction audiometer documented slight left ear hearing loss. See August 1963 induction audiometer. The Veteran was given an H2 hearing profile. Id. However, the Veteran states that this hearing test was performed after basic training where he was required to go to the rifle range more frequently than others as he had never shot a gun before. See January 2015 Veteran statement; see also June 2003 VA examination report. He did not wear hearing protection, and the noise at the range was so loud he noticed impaired hearing for hours afterword. Id. Moreover, the June 2019 VA addendum opinion found that the Veteran's left ear hearing loss noted on the induction audiogram was not permanent in nature as it resolved prior to his separation from service. See June 2019 VA medical opinion. Which it did, as the Veteran's May 1965 separation audiometer showed hearing within normal limits in both ears. See May 1965 separation audiometer. As such, the Board concludes that VA has not met the clear and unmistakable evidence standard in order to rebut the presumption of soundness. Specifically, given the June 2019 VA opinion that the Veteran's induction hearing loss noted was acute in nature, as well as the Veteran's credible statements that said temporary hearing loss likely stemmed from his noise exposure in basic training, the Board concludes that VA has not shown by clear and unmistakable evidence that a hearing loss disability existed prior to service and was not clearly and unmistakably aggravated during service. Therefore, the presumption of soundness attaches to the Veteran. See Wagner v. Principi, 370 F.3d 1089, 1092 (2004); 38 C.F.R. § 3.304(b). As such, the crux of this case centers on whether the Veteran's hearing loss was attributable to time spent in service. The Veteran submitted private opinions from his audiologist, J.D., in January 2012 and June 2015. Both statements from J.D. conclude that it is more likely than not that the Veteran's hearing loss is related to his military noise exposure. See January 2012 J.D. medical opinion; see also June 2015 J.D. medical opinion. As such, the Board finds that the January 2012 and June 2015 statements from audiologist J.D. provide the requisite medical nexus opinion linking the Veteran's hearing loss to his noise exposure during service. Moreover, the Veteran has consistently maintained that his hearing loss began in service, dating back to the filing of his claim for service connection wherein he stated his hearing loss disability began during service in October 1963. See January 2003 VA Form 21-526. The Veteran is competent to report the onset and continuation of his hearing loss symptoms and the Board finds his report credible. Charles v. Principi, 16 Vet. App. 370, 374 (2002); see also Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Although he experienced some post-service occupational noise exposure, the Veteran explained that most of his work at the feed mill was in the lab off of the production floor, and even when he did work in noisier areas he was required to wear ear protection. See January 2015 Veteran statement. Collectively, the evidence of record sufficiently establishes that it is at least as likely as not that the Veteran's current hearing loss is etiologically related to his service. See Flynn v. Brown, 6 Vet. App. 500, 503 (1994) (noting that "the element of cause and effect has been totally by-passed in favor of a simple temporal relationship between the incurrence of the disability and the period of active duty"). (Continued on the next page) As the evidence for and the evidence against the Veteran's claim is in relative equipoise, the Board affords the Veteran the benefit of the doubt and finds there is evidence of record establishing a link between the Veteran's noise exposure in service and his bilateral hearing loss. Accordingly, the Board finds service connection for bilateral hearing loss is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Katie Poe, 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.