Citation Nr: 22016808 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 19-27 785 DATE: March 23, 2022 ORDER Service connection for bilateral hearing loss is granted. FINDING OF FACT It is at least as likely as not that the Veteran has a current bilateral hearing loss disability that is related to in-service noise exposure. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for an award of service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1131, 1137, 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 Marine Corps from January 1984 to February 1987. His decorations include the Good Conduct Medal, Rifle Marksman Badge, and Navy Achievement Medal. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. In October 2020, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. In November 2020, the Board remanded the issue on appeal to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. See February 2021 supplemental statement of the case. Service connection for bilateral hearing loss is granted. The Veteran seeks to establish service connection for bilateral hearing loss. He asserts that his hearing loss is related to in-service exposure to loud noise from firing or using rifles, machine guns, grenade launchers, and pistols. See, e.g., June 2018 VA Form 21-4138; October 2020 Board hearing transcript. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The requirement of a current disability is satisfied when the claimant is shown to have the disability either at the time he files his claim for service connection, or during the pendency of that claim, even if the disability resolves prior to final adjudication. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). When the record contains a recent diagnosis of disability prior to the filing of a claim for benefits based on that disability, the report of diagnosis is relevant evidence that must be addressed in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). Specific to claims for service connection for hearing loss, impaired hearing is considered a "disability" for VA purposes only when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; when the thresholds for at least three of these frequencies 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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. In the present case, the Board finds that the evidence is in approximate balance as to whether the Veteran has a current bilateral hearing loss disability for VA compensation purposes. While August 2018 and February 2021 VA examination reports do not show a bilateral hearing loss disability as that term is defined in 38 C.F.R. § 3.385, December 2015 and March 2016 private audiograms show a left ear hearing loss disability and a November 2018 private audiogram shows a right ear hearing loss disability. Id. In the Board's view, the private audiograms, at a minimum, give rise to a reasonable doubt as to the presence of a current disability. See also Romanowsky, supra. In addition, the Veteran has been awarded service connection for tinnitus based on conceded in-service exposure to loud noise. Thus, the question is whether the current bilateral hearing loss disability is related to service. On that question, there are probative opinions in favor of and against the claim. The evidence against the claim includes a February 2021 VA examiner's opinion that it is less likely than not that the Veteran's hearing loss is related to military noise exposure. The rationale was that the Veteran's military occupational specialties were administrative clerk and personnel clerk, which have low probabilities of noise exposure, and that there was no significant permanent shift in hearing thresholds during active duty. The evidence in favor of the claim includes a May 2018 opinion from a private physician, Dr. J.R., that it is highly likely that the Veteran's hearing loss is a direct result of his exposure to heavy machinery and assault rifles during service. Similarly, an August 2018 VA examiner opined that the Veteran's bilateral hearing loss was at least as likely as not caused by or a result of an event in military service. It was reasoned that the Veteran's exposure to loud noise while in service was significant and that it was more likely than not that this noise exposure contributed to his hearing loss. The examiner explained that noise exposure causes structural changes in cochlear sensory cells and their supporting cells, which, in turn, compromises cochlear function. The examiner further explained that it is known that these changes cause both temporary and permanent auditory threshold shifts and ultimately result in permanent and progressive sensorineural hearing loss. Upon review of the record, the Board finds that there is an approximate balance of positive and negative evidence as to whether the Veteran has a current bilateral hearing loss disability that is related to service. In this regard, the Board finds the above-referenced positive opinions no less probative than the negative opinion. Accordingly, and resolving doubt in favor of the Veteran, the Board finds that service connection for bilateral hearing loss is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The appeal is granted. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Ragheb, 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.