Citation Nr: 22013871 Decision Date: 03/10/22 Archive Date: 03/10/22 DOCKET NO. 18-12 693 DATE: March 10, 2022 ORDER Entitlement to service connection for bilateral hearing loss disability is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his bilateral hearing loss disability is related to acoustic trauma sustained during his active service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss disability have been met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active naval service from October 1967 to August 1971, to include service in the Republic of Vietnam. This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. Service Connection Bilateral Hearing Loss The Veteran asserts that his bilateral hearing loss disability is related to his active service. Specifically, the Veteran asserts that he was exposed to hazardous noise during his duties as an aircrew gunner during his service. The Veteran's service treatment records (STRs) note that in July 1971 he complained of a left earache. Otherwise, his STRs are absent of any complaint of, treatment for, or diagnosis of hearing loss in either ear. However, the Veteran's military personnel records (MPRs) reveal that his naval rating was aircraft mechanic. Additionally, a May 1969 citation revealed that he utilized an M-60 machine gun to suppress enemy forces in the Republic of Vietnam (RVN). The Veteran's MPRs also showed that that he inspected the engines and performed organizational maintenance on the power plants and related systems of the P-34. In April 2016, the Veteran was afforded a VA audiological examination. At that time, he was noted as having a hearing loss disability for VA purposes. See 38 C.F.R. § 3.385 (2020). The VA examiner noted that the Veteran's in-service occupation had a high probability of hazardous noise exposure. However, the VA examiner opined that his bilateral hearing loss was not at least as likely as not caused by or the result of his active service. The VA examiner revealed that the Veteran had normal hearing during his in-service examinations and, as such, there was no evidence of hearing loss or acoustic trauma. Additionally, the VA examiner referred to the 2006 Institute of Medicine (IOM) report and noted how the IOM panel concluded that a prolonged delay in the onset of noise-induced hearing loss was unlikely. However, the VA examiner subsequently noted that the 2006 IOM report also concluded that there was not sufficient evidence to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime. Further, the VA examiner noted that the Veteran first sought treatment for hearing problems in 2014, 43 years after his service. In a November 2019 private medical opinion, a private audiologist, Dr. N.W., opined that the Veteran's hearing loss was at least as likely as not a result of his described military noise exposure. Dr. N.W. noted that he did not have access to the Veteran's military records. However, Dr. N.W. stated that the Veteran reported military noise exposure, lacked other employment and recreational noise exposure, and lacked other contributing health conditions. During the November 2021 Board hearing, the Veteran testified that he was exposed to aircraft noise and was not issued hearing protection. Additionally, the Veteran confirmed that he noticed hearing loss with a year of getting out of the Navy. Specifically, he testified that he could not hear as well as everybody else. At the outset, the Board finds that the Veteran is competent to identify his reduced hearing acuity. Heuer v. Brown, 7 Vet. App. 379, 387 (1995); Falzone v. Brown, 8 Vet. App. 398, 406 (1995). Moreover, the Board finds the Veteran to be credible in that respect. Jandreau v. Nicholson, 492 F.3d. 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Additionally, the Board finds that the Veteran's report of hazardous noise exposure is consistent with the facts and circumstances of his service, as documented in his MPRs. Further, the Board finds that the April 2016 VA medical opinion is inadequate for adjudication purposes. In this regard, the examiner failed to consider the Veteran's lay statements regarding the onset and continuity of his symptoms. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Dalton v. Nicholson, 21 Vet. App. 23 (2007). Further, the VA examiner relied heavily on the 2006 IOM report as a rationale for the negative opinion provided. However, as specifically noted by the VA examiner, when that report is read in full, it actually indicates that there is not enough scientific data to conclusively determine that delayed onset hearing loss is not possible. Therefore, using the favorable portion of the 2006 IOM report to support a negative opinion constitutes relying on an inaccurate factual premise. As the opinion is not adequate, it cannot serve as the basis of a denial of entitlement to service connection. Further, the Board finds that the November 2019 private medical opinion is of a diminished probative value. In this regard, Dr. N.W. based his opinion on the Veteran's lay statements without reviewing his medical records. However, while the November 2019 opinion is of diminished probative value it is the most probative medical evidence of record. In sum, the Board concedes that the Veteran sustained acoustic trauma during his service; the Veteran has a current diagnosis of a bilateral hearing loss disability for VA purposes; the Veteran has competently and credibly reported the onset and continuity of his decreased hearing acuity since active service; and the most probative medical evidence of record provides a nexus of his bilateral hearing loss with his in-service noise exposure. Accordingly, the Board finds that the evidence for and against the claim is in approximate balance. Therefore, the benefit of the doubt must be resolved in favor of the Veteran, and entitlement to service connection for bilateral hearing loss disability is warranted. 38 U.S.C. § 5107(b) (2018); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Byrd, 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.