Citation Nr: 21040913 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 14-24 284A DATE: July 7, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT The Veteran has had hearing loss related to acoustic trauma since his separation from service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1963 to May 1966. This matter comes before the Board of Veterans' Appeals (Board) from a February 2013 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Board most recently remanded the case for additional development in March 2021 for an addendum opinion to consider the Veteran's competent complaints of hearing loss since service. An addendum opinion was provided, and the case is returned for appellate review. 1. Entitlement to service connection for bilateral hearing loss The Veteran contends that he has bilateral hearing loss related to his exposure to noise in service. He noted on a May 2011 statement that he served on a truck less than 20 yards from the firing tanks, behind firing lines, and unloading rounds to be fired, without hearing protection. He noted that this was experienced on a daily basis for three to four weeks at a time. He also noted that his hearing loss began in service but was not treated. See May 2011 VA-21-526 Veterans Application for Compensation or Pension. He stated on his VA-Form 9 that he drove a truck for 20 months while in Germany hauling rounds for the tanks and parked in the trucks behind the range as they fired round after round. He recalled that the trucks did not have the same insulation as they had today and that he drove thousands of miles on trucks with exhaust/ stack right by the cab without soundproofing to quiet the noise of the engine, exhaust, and road noise. Certain chronic diseases will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. The Board concludes that even though the Veteran's bilateral hearing loss was not shown as chronic (reliably diagnosed) in service or within a presumptive period and did not manifest to a compensable degree within a presumptive period, the Veteran is presumed to have been exposed to acoustic trauma in service, and there is continuity of symptomatology since service that is attributable to the bilateral hearing loss. The Veteran has a current diagnosis of bilateral sensorineural hearing loss. See, e.g., December 2012 VA examination report; see also 38 C.F.R. § 3.385. The Veteran's noise exposure is conceded based on his military occupational specialty (MOS) of heavy vehicle driver during his service in the Army. He also is currently service connected for tinnitus based on his presumed exposure to acoustic trauma in service. A VA audiology examination was provided in December 2012 with a medical opinion that was deemed inadequate by the Board in its May 2018 remand, because the rationale for the opinion was that the Veteran's hearing was normal in service. Subsequently, several VA audiology addendum opinions were provided in April 2019, December 2019, December 2020, and March 2021, most of which, except for the December 2020 opinion, were provided by the same audiologist. In a June 2019 written brief presentation, the Veteran's representative argued that the April 2019 VA examiner's opinion that hearing loss was not conceded based on noise alone was in conflict with the examiner's positive opinion regarding the Veteran's tinnitus. The Veteran's representative cited to the National Institute on Deafness and Other Communication Disorders, which noted that tinnitus is a symptom that something is wrong in the auditory system, which includes the ear, the auditory nerve that connects the inner ear to the brain, and the parts of the brain that process sound. See www.nidcd.nih.gov. Thus, the Veteran's representative asserted that for the Veteran's tinnitus to be found to be the result of excessive noise exposure, the Veteran's diagnosis of sensorineural hearing loss would have to have been present in service, rendering the opinion regarding auditory damage and hearing loss not conceded on noise alone, inadequate. The Veteran's representative further mentioned that while the examiner addressed the hearing loss as being diagnosed post-service, and indicated post-service occupational and recreational history as being a possible cause of the hearing loss, the examiner did not consider the Veteran's statements that he worked as a mill superintendent for 30 years post-service, which required him to wear ear protection. The Veteran also mentioned hunting with a shotgun approximately two to three weeks per year over a 10-year period but did not state whether he wore ear protection. Therefore, the Veteran did not report any post-service intercurrent causes of his hearing loss and his contention that his hearing loss began as a result of noise exposure is consistent with the circumstances of his service. The Board noted in the June 2019 remand that the April 2019 VA opinion was inadequate because, in spite of the previous Board remand in May 2018 specifically noting that hearing loss need not be shown in service for service connection to be established, pursuant to Hensley v. Brown, 5 Vet. App. 155, 160 (1993), the examiner seemingly based the opinion solely on the fact that the Veteran's service treatment records showed normal hearing. Moreover, the examiner did not provide an adequate rationale as to how they were able to determine that the Veteran did not experience auditory damage in-service. As the examiner noted, the Veteran was not provided with an audiogram when he entered active duty in June 1963. Therefore, the examiner would be unable to determine if the Veteran had a significant threshold shift during his active service from June 1963 to May 1966 or make any other comparisons regarding the Veteran's hearing ability at enlistment and at his separation from active service based solely on his service treatment records. However, the Veteran reported during the examination hearing loss which began sometime between 1964 and 1965, indicating hearing difficulties which began in service. In addition, the examiner did not provide a rationale as to how they were able to determine that the Veteran's in-service noise exposure was severe enough to cause tinnitus but was not severe enough to cause auditory damage. The subsequent medical opinions in December 2019, December 2020, and March 2021 essentially were based on the same premise that the Veteran had normal hearing in service and no significant shift in hearing thresholds, despite the fact that there was only a whisper test at entry into service, which was deemed inadequate for testing purposes. The opinions also failed to address why the acoustic trauma the Veteran experienced in service was significant enough to cause his tinnitus, but not his hearing loss. Based on the lack of adequate rationales, the probative value of the medical opinions of record is low. While the examiners' rationales for the negative opinions were that there was no hearing loss shown in service, the absence of a hearing loss disability in service is not, in and of itself, fatal to a claim for service connection for bilateral hearing loss. 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. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The examiners did not assign any weight to the Veteran's competent statements that he had experienced hearing loss since service; and the Board finds the Veteran's statements to be credible. While no treatment records exist from during the applicable presumptive period, the Board finds that the Veteran continued to experience the same symptoms since service. The Veteran is competent to report that he experienced symptoms of hearing loss during that period. His statements are credible and entitled to probative weight, as they are internally consistent and consistent with other evidence of record, which shows that these symptoms were attributable to the Veteran's hearing loss. Therefore, the Board finds that service connection for hearing loss is warranted. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sarah B. Richmond, 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.