Citation Nr: 22002000 Decision Date: 01/13/22 Archive Date: 01/13/22 DOCKET NO. 16-63 289 DATE: January 13, 2022 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT Affording the Veteran the benefit of the doubt, his bilateral hearing loss symptoms began during his active service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 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 from January 1966 to January 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from August 2015 and March 2016 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Board remanded this appeal for further development. The Board finds there has been substantial compliance with the prior Board remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran has not raised any issues in the current appeal that are not discussed herein, nor have any other issues been reasonably raised by the record. Doucette v. Shulkin, 28 Vet. App. 366 (2017). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Service connection for bilateral hearing loss Service connection is granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence of: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection is presumed where there are either chronic symptoms shown in service or continuity of symptoms since service for diseases identified as "chronic" in 38 C.F.R. §§ 3.303(b), 3.309(a). Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). When all evidence is assembled, VA must determine 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. Gilbert v. Derwinski 1 Vet. App. 49 (1990). Sensorineural hearing loss is a "chronic disease" listed under 38 C.F.R. § 3.309(a). Thus, the presumptive service connection provisions of 38 C.F.R. § 3.303(b) apply in this portion of the appeal. Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) 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 Veteran contends that he has bilateral hearing loss related to his military service, when he worked as a Hercules missile crewman. He reports that he was exposed to noise from weapons fire, ships, and missiles. See August 2021 VA Examination. He describes bilateral hearing loss since service that has worsened in more recent years, and his statements are credible and consistent with his service. Service personnel records confirm the Veteran's military occupational specialty (MOS) as an Hercules missile crewman. The Board finds that his competent testimony is consistent with, and certainly possible in light of, his documented MOS. Accordingly, the Board concludes that there has been continuity of bilateral hearing loss symptoms since service. 38 C.F.R. § 3.303(b). Multiple VA examinations are of record which include audiological evaluations showing a bilateral hearing loss disability per 38 C.F.R. § 3.385. See August 2020 VA Examination (which shows hearing loss at 3000 Hertz, with 50 decibels in the right ear and 40 decibels in the left ear). In this regard, the Board notes that a June 2015 VA examination found hearing loss for VA purposes in only the Veteran's right earand that the examiner opined that the Veteran's bilateral hearing loss was less likely than not caused by, or a result of, his military noise exposure. The examiner noted the Veteran's reports of exposure to high levels of noise during service but relied on his normal enlistment and separation audiological evaluations as the basis for the negative opinion. Another VA examinationdated in August 2020is of record. While this examination documents the Veteran's bilateral hearing loss for VA purposes, no etiology opinion was given by the examiner. In an addendum opinion dated in August 2021, an examiner recorded the Veteran's reports of in-service noise exposure related to his duties as a missile crewman and recorded his exposure to weapons fire, ship noise, and missiles. The examiner conceded the Veteran's exposure to hazardous noise levels while in service but concluded to the contrary that he did not have a hearing injury while in service. The examiner relied on the normal audiological testing and absence of a significant threshold shift during service in finding that the Veteran did not have a hearing injury during service. Relying on the absence of a hearing loss disability during service, the examiner opined it was not at least as likely as not that the Veteran's current hearing loss is related to his military service. Despite noting the Veteran's in service hazardous noise exposure, the examiner did not appear to consider such in providing an opinion and focused on the absence of documented hearing loss during service in providing an opinion. The August 2021 VA examiner was also asked to consider whether the Veteran's hearing loss was proximately due to, a result of, or aggravated beyond its natural progression by his service-connected tinnitus. The examiner indicated that it was not at least as likely as not aggravated beyond its natural progression, but in providing supporting rationale the examiner copied the same rationale provided in addressing direct service connection. Accordingly, an addendum opinion was obtained in November 2021. The addendum opinion was requested for the examiner to address again whether the Veteran's hearing loss was proximately due to, a result of, or aggravated beyond its natural progression by his service-connected tinnitus with supporting rationale. The examiner indicated that hearing loss and tinnitus are not necessarily mutually occurring and have varying causes, and that hearing loss does not cause tinnitus or vice versa. The examiner then opined, based on the Veteran's normal hearing during service, that it was less likely than not that the Veteran's tinnitus could have aggravated his hearing loss. The August 2021 negative nexus opinion and November 2021 addendum opinion are of little probative value, as the examiners failed to take the Veteran's lay statements about his noise exposure into account in providing the requested opinions. Instead, the examiners relied on the absence of documented hearing loss in service in providing the negative opinions. In this regard, the Board points out that the absence of a hearing loss disability in service is not in and of itself fatal to a claim for service connection for hearing loss. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Despite recording the Veteran's reports of noise exposure during service, the examiners did not accord his contentions any consideration in providing the requested opinions. Lay evidence, when credible, is competent to establish the presence of continuity of symptoms for a claimed disability during, and since, separation from active service. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). As the evidence of record in the current appeal reflects acoustic trauma in service as well as the Veteran's competent and credible assertions of the onset of bilateral hearing loss symptoms in service continuing to the present, the evidence is at least evenly balanced in showing that his current bilateral hearing loss onset during service. Thus, the Board resolves all reasonable doubt in his favor. As the evidence is in relative equipoise, the benefit-of-the-doubt rule applies, and entitlement to service connection for bilateral hearing loss is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Goreham 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.