Citation Nr: 21030671 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 18-22 007 DATE: May 19, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT The evidence is at least in relative equipoise as to whether the Veteran's bilateral hearing loss is related to his active service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 1975 to May 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2020, the Veteran appeared at a videoconference hearing before the undersigned. A transcript of the hearing is of record. At the outset, the Board notes that, other than his service enlistment examination, the Veteran's service treatment records (STRs) are unavailable. Where STRs are unavailable, the Board's obligation to explain its findings and to consider the benefit of the doubt rule is heightened. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Entitlement to service connection for bilateral hearing loss is granted. Establishing service connection generally requires (1) evidence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When all the evidence is assembled, 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 a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). For VA purposes, a minimum degree of hearing loss is a prerequisite for entitlement to service connection. McKinney v. McDonald, 28 Vet. App. 15 (2016). Hearing loss is a disability for VA purposes if it exceeds the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or 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 between 0 and 20 decibels and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). The Veteran contends that he was exposed to acoustic trauma during his active service as a cannon crewmember, and he has experienced hearing loss since his active service. The Veteran's March 1975 enlistment examination notes that puretone thresholds for the Veteran's right ear, in decibels, at 500, 1000, 2000, and 4000 Hertz were as follows: 15, 5, 5, and 10. Puretone thresholds for the Veteran's left ear, in decibels, at 500, 1000, 2000, and 4000 Hertz were as follows: 10, 5, 0, and 15. The Veteran's DD 214 reflects that his military occupational specialty (MOS) was that of a cannon crewmember, and VA has conceded in-service noise exposure. A July 2017 statement from the Veteran's private audiologist indicates that the Veteran was seen for an audiology examination in January 2012 and had bilateral precipitous high frequency sensorineural hearing loss. The statement notes that the Veteran had reported a history of noise exposure in service, working in an oil refinery, and recreational use of firearms. The Veteran received a VA medical examination for hearing loss and tinnitus in July 2017. On the authorized audiological evaluation, puretone thresholds for the Veteran's right ear, in decibels, at 500, 1000, 2000, 3000, and 4000 Hertz were as follows: 15, 15, 30, 70, and 75. Puretone thresholds for the Veteran's left ear, in decibels, at 500, 1000, 2000, 3000, and 4000 Hertz were as follows: 15, 20, 35, 90, and 90. Speech audiometry revealed speech recognition ability of 96 percent for the right ear and 88 percent for the left ear. The examination report reflects a diagnosis of sensorineural hearing loss in the frequency range of 500 to 4000 Hz in each ear. During the examination, the Veteran reported noise exposure during service from howitzers and denied civilian noise exposure without the use of hearing protection. The examiner indicated that STRs were not available, and without any information, it was less likely than not that his hearing loss was impacted by his military service. Notably, the examiner provided a positive nexus opinion for the Veteran's tinnitus based on the Veteran's in-service noise exposure and his use of hearing protection in his post-service employment. After carefully reviewing and weighing the competent evidence of record, the Board is satisfied that the evidence is at least in approximate balance as to whether the Veteran's current hearing loss is related to service. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As noted above, the Veteran's STRs are largely unavailable. However, the absence of in-service evidence of a hearing 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 loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection where there is credible evidence of acoustic trauma due to significant noise exposure during service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the in-service injury. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Here, the Veteran has a current hearing loss disability as demonstrated by his July 2017 VA audiology examination report. The Veteran exceeded the auditory threshold of 40 decibels in both ears at 3000 Hz and 4000 Hz. These audiogram results show that the Veteran met the criteria for bilateral hearing loss pursuant to 38 C.F.R. § 3.385. Additionally, as noted above, in-service noise exposure has been established. Regarding a nexus, the Veteran has competently and credibly reported problems hearing since his active service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Moreover, post-service work and recreational history indicated little-to-no noise exposure without hearing protection. The Board finds that, taken as a whole, the probative evidence of record suggests a link between this hearing loss and the Veteran's military service. While the Board cannot ignore or disregard the VA audiologist's medical conclusion [see Willis v. Derwinski, 1 Vet. App. 66 (1991)] that hearing loss was not related to his military service, it is free to assess medical evidence and is not compelled to accept a medical opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). In this case, the VA opinion is problematic because the VA audiologist relied solely on the absence of the Veteran's STRs in rendering the negative service connection opinion. Indeed, despite finding that the Veteran's tinnitus was related to his in-service noise exposure, the examiner did not provide any reason as to why the in-service acoustic trauma was not a source of, or at least a contributing factor to, the Veteran's current hearing loss. Based on the foregoing, the Board finds that the evidence is, at minimum, in equipoise as to whether the Veteran's current hearing loss is related to his military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. The benefit-of-the-doubt will be conferred in the Veteran's favor and his claim for service connection for bilateral hearing loss is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Hite, 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.