Citation Nr: 21032671 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 15-23 573 DATE: May 27, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, the Board finds his bilateral hearing loss is attributable to an in-service noise exposure. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1967 to August 1969. The Veteran is in receipt of the Combat Infantryman Badge. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was previously remanded for further development in September 2020. The matter returns to the Board for appellate consideration. Entitlement to service connection for bilateral hearing loss. The Veteran seeks service connection for a bilateral hearing loss disability. The Board finds service connection is warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Generally, in order to establish service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board also notes that certain chronic diseases are subject to a grant of service connection on a presumptive basis when present to a compensable degree within the first post-service year. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Organic diseases of the nervous system, including sensorineural hearing loss, are considered by VA to be chronic diseases. 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). For VA compensation purposes, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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 record shows the Veteran meets VA's criteria for hearing loss, bilaterally. The August 2013 and January 2021 VA audiograms show pure tone thresholds were in excess of 40 decibels in one or more of the frequencies, bilaterally. Therefore, the first element for service connection is met. The Veteran asserts that his current bilateral hearing loss was caused by in-service occupational noise exposure in the form of gunfire, artillery, and explosions without the use of hearing protection as an infantryman during combat. See July 2013 Statement in Support. The Veteran was afforded VA examinations in August 2013 and January 2021. The examiner noted the Veteran's reports for in-service excessive noise exposure with no hearing protection nor post service occupational noise exposure. The examiner provided a negative nexus opinion for the Veteran's bilateral hearing loss based upon an absence of shifts in hearing acuity during the Veteran's active service, noting improvement and normal clinical evaluations upon separation, and concluded that medical literature does not support the concept of delayed onset of noise-induced hearing following noise exposure. A January 2021 VA examiner provided a negative nexus opinion and noted no significant permanent shifts in hearing thresholds beyond test variability from the August 1967 entrance examination and July 1969 separation examination, demonstrating objective evidence of no permanent auditory damage on active duty based on conceded noise exposure. The examiner also noted the lack of complaints or treatment for decreased hearing in service records or upon separation and indicated that while noise exposure is conceded and auditory damage and hearing loss are well established, auditory damage and hearing loss are not conceded based on noise alone. Medical literature was provided in support of the opinion, demonstrating no evidence of delayed onset of hearing and cessation of hearing loss upon the absence of continued noise exposure. However, research from the medical literature also indicated that susceptibility of noise induced hearing loss is variable although "10 years or more of exposure is generally required for significant hearing loss to occur" and is more attributable to advanced age. The examiner concluded a nexus between auditory damage and current hearing loss to military had not been established. However, the Board finds that these opinions are inadequate as they did not adequately consider the Veteran's lay statements that his hearing difficulty began in service and continued since service. While the Veteran's service treatment records do not document any specific noise injuries, the Veteran is competent to provide lay evidence of his in-service noise exposure. The Veteran reports difficulty with his hearing since his combat duties in service, to include gunfire, artillery, and explosion without the use of hearing protection, and is continuous to the present day. Moreover, the Board notes that the Veteran is a combat Veteran. Pursuant to 38 U.S.C. § 1154 (b), for any Veteran who engaged in combat with the enemy, VA shall accept lay or other evidence as proof of a disease or injury being incurred or aggravated by such service, even if there is no official record of such incurrence, so long as the evidence is consistent with the circumstances of such service. See also 38 C.F.R. § 3.304 (d). The Board finds it credible that the Veteran was exposed to excessive noise during combat service and has experienced persistent hearing loss as a result thereof. Given the Veteran's combat status, his exposure to hazardous noise during service, and his credible statements of continuous hearing loss since service, the Board finds that the evidence is at least in equipoise, and that service connection for bilateral hearing loss is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. S. Sorathia Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. Asfaw, 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.