Citation Nr: 22015993 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 18-28 022 DATE: March 21, 2022 ORDER Entitlement to service connection for bilateral hearing loss is granted. REMANDED Entitlement to service connection for residuals of a neck injury is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his bilateral hearing loss began during active service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have been satisfied. 38 U.S.C. §§ 1110, 1112, 1131, 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 Navy from April 1986 to April 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In July 2020 and June 2021, the Board remanded the matter to the Agency of Original Jurisdiction (AOJ) for additional development, and it has since returned for further appellate review. As discussed below, the issue of service connection for residuals of a neck injury must be remanded for further development. 1. Service Connection for Bilateral Hearing Loss The Veteran asserts that his bilateral hearing loss began during service, to include as due to exposure to hazardous noise. See October 2017 Notice of Disagreement, May 2020 Hearing Tr. at 2-3. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has established certain rules and presumptions for chronic diseases, such as organic diseases of the nervous system like sensorineural hearing loss. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The Veteran has a current diagnosis of bilateral hearing loss as evidenced by the June 2016 and July 2017 audiograms that meets the regulatory criteria to be considered a disability for VA purposes. 38 C.F.R. § 3.385. The remaining question is whether the current bilateral hearing loss disability is related to service. The Veteran's DD-214 reflects that during his active service his Military Occupational Specialty (MOS) was Naval Aircrew Candidate and Acoustic Sensory Operator. The Department of Defense (DOD) MOS Noise Exposure Listing indicates that a servicemember in the Veteran's position had a high probable risk of noise exposure. Service personnel records indicate that the Veteran had over 600 hours of flight during service. In a February 1989 service treatment record, the Veteran reported being unable to clear his ear after landing from a flight. In a December 2001 reserve treatment, the Veteran indicated being routinely exposed to noise. Post-service, during a June 2016 VA treatment, it was noted that the Veteran had a positive history of exposure to military related noise. The Board does not give any probative weight to the medical findings made during the June 2017, February 2018, and January 2021 VA examinations that the Veteran did not have a current bilateral hearing loss disability. As noted above, treatment records have confirmed a current bilateral hearing loss diagnosis during the appeal period. The Board has considered the October 2021 medical opinion where the examiner determined that the Veteran did not have hearing loss until at least 27 years after service. Notably, the examiner determined that VA hearing test revealed "a high frequency notch in both ears which is consistent with hazardous noise exposure." The examiner did not address whether such noise exposure was related to service. Upon review of the record, the Board finds the most persuasive evidence supports a finding that the Veteran continued to experience the same symptoms of hearing loss since service. In that regard, the Veteran is competent to report symptoms that are observable to a layperson, such as difficulty hearing. See Davidson v. Shinseki, 581 F.3d 1313 (2009). It was highly likely based on his MOS and treatment records that he was exposed to loud noise during service, and continued to have the same symptoms since then. Given the in-service findings of likely exposure to loud noise and the post service findings of hearing loss as likely due to the same loud noise from service, the Board resolves all reasonable doubt in the Veteran's favor and find that service connection for bilateral hearing loss is warranted. The claim is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Service Connection for Residuals of Neck Injury is Remanded. In June 2021, to resolve conflicting findings in the December 2020 medical opinion, the Board directed the AOJ to obtain another opinion addressing whether his neck disability was related to service, to include whether it was a result of his report of neck injury while onboard an airplane that had wing failure and had to perform emergency landing. An addendum opinion was obtained in September 2021. Unfortunately, the examiner's opinion is incomplete as the examiner did not address the Veteran's report of neck injury during service. As the Board noted in its June 2021 decision, there are documents in the record such as maps, photographs, statement from the commander of the aircraft, and a February 1988 letter to the Veteran's mother purporting to show that he was involved in an airplane incident in 1988. The Veteran asserts that his current neck disability is related to the neck injury sustained during the airplane incident in 1988. The Veteran's report of his neck injury is credible. As the examiner did not address the lay statements, an addendum VA medical opinion should be obtained. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to his neck injury claim. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken, to include notifying the Veteran of the unavailability of the records. 2. After records development is completed, the claims file and a copy of this remand should be sent to the examiner who prepared the September 2021 opinion or, if not available, to an appropriate examiner to offer an opinion as to whether the Veteran's current neck disability onset during service or is otherwise related to an in-service injury, event, or disease, to include his report of neck injury while onboard an airplane that had wing failure and had to perform emergency landing. A rationale for all opinions offered is requested as adjudicators are precluded from making any medical findings. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Mathew 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.