Citation Nr: 22018666 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 19-22 185 DATE: March 30, 2022 ORDER Service connection for left-ear hearing loss is granted. REMANDED Entitlement to service connection for right-ear hearing loss is remanded. FINDING OF FACT Resolving all doubt in favor of the Veteran, she was exposed to acoustic trauma during active service, and has experienced symptoms of left-ear hearing loss continuously since separation from service. CONCLUSION OF LAW The criteria for service connection for left-ear hearing loss have been met. 38 U.S.C. §§ 1101, 1131, 1133, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1976 to August 1979. In May 2021, the Veteran appeared before the undersigned Veterans Law Judge (VLJ) of the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) at a videoconference hearing; a transcript of the hearing has been associated with the claims file. Entitlement to service connection for left-ear hearing loss. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Service connection may 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). Service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Alternatively, continuity of symptomatology may be established if a claimant can demonstrate: (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology under 38 C.F.R. § 3.303 (b); Barr v. Nicholson, 21 Vet. App. 303 (2007). Where a claimant asserts entitlement to a chronic condition but there is insufficient evidence of a diagnosis in service, he can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309 (a), including neurological disorders such as sensorineural hearing loss. Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). Such chronic diseases are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1131, 1133; 38 C.F.R. §§ 3.307, 3.309(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a claimant is competent to report on that of which he or she has personal knowledge). In determining whether service connection is warranted for a disability, VA is responsible for determining 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 the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In her September 2018 statement, the Veteran reported that her military occupational specialty (MOS) during service was food service and that her specific duties included operating 2.5-ton trucks and 5-10 kilowatt generators and firing machine guns, without hearing protection. She reported that she developed hearing problems during service from the constant noise from rifle and machine gun fire, trucks and other heavy vehicles, generators, and C130 aircraft landing and taking off on-base. She asserted that the noise from the heavy trucks and generators was deafening, and it would take hours for her hearing to come back after duty, and that she continued to have hearing problems after service. During her May 2021 Board hearing, she described her in-service noise exposure as discussed above and asserted that she had problems with her hearing acuity during and since service. The Veteran is competent to report the sensation of decreased hearing acuity during and since service and there is not sufficient evidence of record upon which the Board may find her not credible in this regard. Layno, 6 Vet. App. 465, 470. The Board notes here that service connection was granted for tinnitus by a July 2019 rating decision of a Decision Review Officer (DRO) of the VA Regional Office (RO). The Veteran's service treatment records are silent for any complaint, treatment, or diagnosis of left-ear hearing loss. Her service separation form, her DD-214, indicates that her MOS was indeed food service; such also includes the designation that she was a marksman with the M-16 rifle. The Board concedes that the Veteran experienced acoustic trauma in service as a result of her military duties, considering her DD-214 reflecting marksmanship and her lay statements describing in-service exposure related to food service, specifically, work with heavy vehicles and generators. During an April 2018 VA audiological examination, the Veteran demonstrated puretone thresholds, in decibels, in the left ear of 15, 20, 15, 50, 45, measured at 500, 1000, 2000, 3000, and 4000 Hertz. There is evidence of an auditory threshold of 40 decibels or greater at least one of the specified frequencies, and the Veteran's left-ear hearing loss thus meets the VA requirements for consideration as a disability. 38 C.F.R. § 3.385. The examiner opined that the Veteran's left-ear hearing loss was less likely than not related to service, reasoning that she had normal stable hearing from entry to separation from service and her MOS had a low probability of noise exposure. The VA examiner did not consider the Veteran's lay statements, deemed competent and credible herein, as to the onset of decreased hearing acuity that has continued to the present; the opinion is thus of little probative value. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Based on the forgoing, there is probative evidence of current left-ear hearing loss that comports with VA standards to be considered a disability under 38 C.F.R. § 3.385, and, resolving all doubt in favor of the Veteran, probative evidence of in-service acoustic trauma and continued left-ear hearing loss symptoms from the time of separation from service to the present. 38 U.S.C. §§ 1131, 1133; 38 C.F.R. §§ 3.307, 3.309, 3.385; Walker, 708 F.3d 1331, at 1337-39. The Board thus finds that service connection for left-ear hearing loss is warranted. REASONS FOR REMAND Entitlement to service connection for right-ear hearing loss is remanded. According to VA standards, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory 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. At the Veteran's April 2018 VA audiological examination, she demonstrated puretone thresholds, in decibels, in the right ear of 15, 15, 15, 30, 15, measured at 500, 1000, 2000, 3000, and 4000 Hertz, and speech recognition of 96 percent. There was thus no evidence of right-ear hearing loss that met the VA requirements for consideration as a disability. Id. In support of her claim, the Veteran submitted record of private audiograms and treatment reports, dated in the years preceding her claim. Of note is a May 2012 treatment report that includes a speech recognition score of 92 percent for the right ear and a May 2016 audiogram that appears to indicate that the Veteran demonstrated an auditory threshold of 45 decibels at Hertz. There is no indication that the instances of private testing were conducted using VA standards pursuant to 38 C.F.R. § 3.385. As the Veteran's April 2018 VA audiological examination is dated almost four years ago and as there is some discrepancy in the private audiograms and treatment reports, dated in the years preceding her claim and the results of the April 2018 VA audiological examination, on remand, the RO should afford the Veteran a new VA audiological examination to determine the severity of her right-ear hearing loss. An etiological opinion is not required. (Continued on the next page) The matter is REMANDED for the following action: Schedule the Veteran for a VA audiological examination to determine the current severity of her right-ear hearing loss. All indicated tests and studies must be conducted. An etiological opinion is not required P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Department of Veterans Affairs 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.