Citation Nr: 22013166 Decision Date: 03/08/22 Archive Date: 03/08/22 DOCKET NO. 14-42 711 DATE: March 8, 2022 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, he experienced continuity of symptoms related to bilateral hearing loss, namely difficulty hearing, since being exposed to loud noise in service. CONCLUSION OF LAW The criteria for a grant of service connection for bilateral hearing loss has been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from June 1978 until his honorable discharge in January 1984. The Board of Veterans' Appeals (Board) thanks the Veteran for his service to our country. This matter comes before the Board on appeal of a May 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office. In August 2021, the Board remanded the appeal for an addendum opinion. The case is now back before the Board. The Board finds there has been substantial compliance with its remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for bilateral hearing loss. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prevail on the issue of service connection, the evidence must show: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). For certain chronic diseases manifested to a compensable degree within a specified number of years after service, there is a rebuttable presumption of service connection if the veteran served 90 days or more during a war period or after December 31, 1946. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection also may be established for these certain chronic diseases if they manifested during service and subsequently, unless attributable to an intercurrent cause, or if they produced continuity of symptomatology ever since service or the presumptive period. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Analysis The Veteran contends his bilateral hearing loss is the result of exposure to acoustic trauma during active duty service. The Veteran's Navy Military Occupational Specialties (MOS) include Boatswain's Mate and HM3 Navy Hospital Corpsman. See DD Form 214 Certificate of Release or Discharge from Active Duty and Service Treatment Records. The Veteran is service connected for tinnitus. Therefore, noise exposure during service is conceded. Impaired hearing is defined as a disability under VA law when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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. Initially, the Board observes the Agency of Original Jurisdiction (AOJ) that the Veteran has been diagnosed with a bilateral hearing loss disability for VA purposes. See December 2014 Statement of the Case. This is a favorable finding that will be not readjudicated by the Board. Thus, the question before the Board is whether the Veteran's bilateral hearing loss was incurred in or related to his military service, to include presumed in-service noise exposure. For chronic diseases, absent a medical nexus opinion linking the Veteran's current disability to his active service, the question is whether the Veteran has a current disability that is a chronic disease and manifested to a compensable degree during the applicable presumptive period, manifested during service, or produced continuity of symptomatology ever since service or this period. Bilateral hearing loss is considered a chronic disease, which includes sensorineural hearing loss, under 38 C.F.R. § 3.309(a). The Veteran's service treatment records (STRs) show the Veteran had his hearing tested in February 1978, at the beginning of his active duty service; in November 1978; in February 1979; in December 1979; and in October 1983, at his separation from active duty service. These audiograms show normal hearing from 500 Hz to 4000 Hz. See Hensley v. Brown, 5 Vet. App. 155 (1993) (finding that normal hearing is from 0 to 20 decibels; higher thresholds indicate some degree of hearing loss). The absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability, i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above, and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley, 5 Vet. App. at 159. The Veteran was afforded a VA audiological examination in November 2014. The examiner diagnosed bilateral sensorineural hearing loss. The examiner opined the Veteran's bilateral hearing loss is less likely than not caused by or a result of an event in military service. She noted normal hearing at active duty entrance and separation and there was no evidence of threshold shifts. In its August 2021 remand, the Board found the November 2014 examination inadequate. Specifically, the examiner did not consider the Veteran's statements as to whether the in-service noise exposure was directly related to his hearing loss. Pursuant to the August 2021 remand, VA obtained an addendum opinion in September 2021. In providing a negative nexus opinion, the examiner cited an Institute of Medicine (IOM), stating: Understanding the mechanisms and processes involved in the recovery from noise exposure suggests that a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure is extremely unlikely. The evidence from laboratory studies in humans and animals is sufficient to conclude that the most pronounced effects of a given noise exposure on pure-tone thresholds are measurable immediately following the exposure. The examiner concluded, "given normal hearing at discharge, and no significant shift in thresholds from induction to discharge, hearing impairment is less likely as not caused by or aggravated by military noise exposure." It is the responsibility of the Board to assess the credibility and weight to be given to the evidence. Hayes v. Brown, 5 Vet. App. 60 (1993). The Board finds the September 2021 opinion to be inadequate. Specifically, the examiner did not address the Veteran's competent and credible statements regarding in-service onset and continuity of symptoms since service separation. In addition, as noted above, entitlement to service connection for bilateral hearing loss does not require the criteria under 38 C.F.R. § 3.385 to be met during service. See Hensley, 5 Vet. App. at 155. As the November 2014 and September 2021 medical opinions are inadequate, they cannot serve as the basis of a denial of entitlement to service connection. Although there is no medical nexus opinion of record linking the Veteran's current diagnosis of bilateral hearing loss to his active service, the lack thereof is not dispositive. The Board has considered whether the Veteran has presented a continuity of symptomatology associated with his bilateral hearing loss and finds that he has done so. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran has competently and credibly indicated the onset of bilateral hearing loss during his military service, coincident with his duties as a Boatswain's Mate and Navy Corpsman. He is competent to report symptoms of hearing loss, as they are subject to and readily observable by laypersons, and the Board has no reason to doubt his credibility. While the Veteran is not competent to determine whether his hearing loss after service reached a level of 10 percent, given the Veteran's noise exposure during service, and his consistency in statements since service, the Board resolves reasonable doubt in his favor. Therefore, as the VA examinations afforded to the Veteran are of limited probative value, the Board finds that the evidence of record, considering the Veteran's credible lay statements of continued symptomatology, are in approximate balance. Thus, the Veteran prevails. See 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Affording the Veteran the benefit of the doubt, service connection for bilateral hearing loss is granted based upon continuity of symptomatology. Rebecca N. Poulson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Grace Johnk, 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.