Citation Nr: 22019331 Decision Date: 04/01/22 Archive Date: 04/01/22 DOCKET NO. 18-02 570 DATE: April 1, 2022 ORDER Service connection for a bilateral hearing loss disability is granted. FINDING OF FACT The Veteran's bilateral hearing loss cannot be satisfactorily disassociated from his in-service noise exposure or his service-connected tinnitus. CONCLUSION OF LAW Resolving all doubt in the Veteran's favor, the criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from August 1966 to May 1970. This matter is before the Board of Veterans' Appeals (the Board) on appeal from a January 2017 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The rating decision, inter alia, denied service connection for bilateral hearing loss. The Veteran's Notice of Disagreement (NOD) was received in January 2017. The Statement of the Case was issued in December 2017, and the Veteran's VA Form 9, substantive appeal to the Board, was received the same month. In August 2021, the Veteran and his representative appeared before the undersigned Veterans Law Judge (VLJ) for a Board video hearing. The transcript is of record. In December 2021, the claim was remanded by the Board. Entitlement to service connection for a bilateral hearing loss disability. The Veteran asserts that his current hearing loss is related to in-service noise exposure. Specifically, in his December 2017 VA Form 9, the Veteran indicated that he worked as Aviation Ordnanceman and was exposed to acoustic trauma around aircraft. During the August 2021 Board hearing, the Veteran testified that during service he started out as an aviation ordinance person and was routinely exposed to jet engine noise. The Veteran also testified that during his deployment to Vietnam, he was exposed to jet engine noise, continual rocketing, and mortars without sufficient hearing protection. The Veteran's tinnitus is service connected. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a); sensorineural hearing loss is a qualifying chronic disease. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Likewise, service connection is warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). A Veteran's lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. §§ 3.303(a), 3.159(a); See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Decreased hearing acuity is the type of symptom or disability capable of observation by a lay person. See also Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). A layperson is competent to report on the onset and continuity of his current symptomatology. See 38 C.F.R. § 3.159 (a); see also Layno v. Brown, 6 Vet. App. 465, 470 (1994). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage v. Gober, 10 Vet. App. 488, 496 (1997) (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). For the purpose of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 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 audiometric test results at separation from service do not meet the regulatory requirements for establishing a "disability" at that time, a veteran may nevertheless establish service connection for a current hearing loss disability by submitting evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The threshold for normal hearing is from 0 to 20 decibels. Id. at 157. The Veteran has a current bilateral hearing loss disability for VA purposes. On the authorized audiological evaluation in January 2017, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 35 30 45 60 LEFT 25 25 30 55 65 Speech discrimination score was 96 percent in each ear. The VA examiner also concluded that the Veteran had bilateral hearing loss for VA purposes. The record also establishes that the Veteran had in-service noise exposure. His DD Form 214 lists his military occupational specialty (MOS) as an Aviation Ordnanceman. It also lists him as the recipient of the Vietnam Service Medal, Vietnam Campaign Medal, and Combat Action Ribbon. Accordingly, noise exposure is consistent with the circumstances of the Veteran's service. See 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). The remaining question is whether the Veteran's bilateral hearing loss is related to his in-service noise exposure. The January 2017 and December 2021 VA examiner's provided negative nexus opinions. The January 2017 VA examiner indicated that the Veteran's induction and separation hearing exams did not show a significant change in hearing sensitivity. The December 2021 VA examiner noted significant noise exposure on active duty, and discussed the audiometric examination results contained within the Veteran's service treatment records (STRs). Significantly, prior to January 1, 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA). Since December 31, 1970, the International Standards Organization-American National Standards Institute (ISO-ANSI) standards generally have been used. The December 2021 VA examiner converted the Veteran's July 1966 audiometric results to ISO-ANSI, and noted hearing loss in 5500 Hertz in the left ear, and in 6000 Hertz bilaterally, attributing these results to user error given the subsequent in-service hearing test results. The VA examiner noted the January 1969 and April 1970 audiometric results showed hearing within normal limits and indicated that the claims file is inconclusive for complaints of hearing loss at the time of separation. The VA examiner also noted that during the January 2017 VA examination, the Veteran reported tinnitus having onset many years before the examination. The VA examiner then reiterated that there was no significant threshold shift in service, and cited recent studies suggesting that there is insufficient evidence to included that hearing loss due to noise will progress once the noise exposure is discontinued. At the outset, January 2017 and December 2021 VA medical opinions do not provide adequate rationale for their conclusions. The VA examiner did not address when the Veteran's left ear hearing loss had its onset. However, lack of in-service diagnosis or treatment does not in and of itself equate to a lack of disability as the Veteran's disability may had its onset after service and may still be related to service. While medical treatment, or lack thereof may be relevant, lack of documented treatment in service cannot serve as the basis for a negative opinion. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) and Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Thus, the January 2017 and December 2021 VA medical opinions with respect to a nexus between the Veteran's bilateral hearing loss and service are not afforded probative value. In this case, the Veteran's tinnitus is service connected, and, he contended it began many years prior to the January 2017 VA examination. The Veteran's service-connected tinnitus is based on the same in-service noise exposure as his bilateral hearing loss. It is inconsistent to determine that the same noise exposure was sufficient to cause tinnitus but not sufficient to cause hearing loss. This is particularly persuasive given that there is no competent evidence to suggest that the Veteran's tinnitus is not associated with his hearing loss. The December 2021 VA examiner concluded that tinnitus does not cause hearing loss, and noted that it is a symptom of an underlying condition. However, neither the January 2017 nor the December 2021 VA examiners concluded that the Veteran's tinnitus is not a symptom of hearing loss. Therefore, the evidence is at least in relative equipoise as to whether the Veteran's bilateral hearing loss is related ot his in-service noise exposure and his service-connected tinnitus. In essence, the medical and lay evidence of record indicates that the Veteran's bilateral hearing loss cannot be satisfactorily disassociated from his in-service noise exposure or his service-connected tinnitus. With all reasonable doubt resolved in the Veteran's favor, service connection for bilateral hearing loss is warranted. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kuksova, Kseniya 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.