Citation Nr: 22019769 Decision Date: 04/03/22 Archive Date: 04/03/22 DOCKET NO. 15-00 061A DATE: April 3, 2022 ORDER Entitlement to service connection for right ear hearing loss is granted. Entitlement to service connection for left ear hearing loss is granted. FINDINGS OF FACT 1. Resolving all doubt in the Veteran's favor, the Veteran's current right ear hearing loss is related to her active military service and/or active duty for training (ACDUTRA). 2. Resolving all doubt in the Veteran's favor, the Veteran's current left ear hearing loss is related to her active military service and/or ACDUTRA. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right ear hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for entitlement to service connection for left ear hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from January 1991 to June 1991, with prior extensive Reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In April 2018, the Veteran provided testimony at a videoconference Board hearing. A transcript of the hearing is of record. Subsequently, in November 2019, the Board denied the Veteran's claims for entitlement to service connection for right ear hearing loss and left ear hearing loss, respectively. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). By a January 2021 order, the Court granted a Joint Motion for Partial Remand (JMPR) vacating and remanding the denial of entitlement to service connection for right ear hearing loss and left ear hearing loss. The January 2021 JMPR found that the Board failed to ensure VA satisfied its statutory duty to assist, specifically to obtain all the Veteran's outstanding service treatment records (STRs) during her period of Reserve service. The Board notes that the hearing in April 2018 was before a Veterans Law Judge (VLJ) who is no longer employed by the Board. Consequently, on January 27, 2021, correspondence, the Veteran was given the opportunity to request another hearing with another VLJ. As neither the Veteran nor her representative responded to this letter, no further action is required with respect to this matter. Pursuant to the JMPR, these claims were most recently remanded by the Board in June 2021 to obtain the Veteran's outstanding STRs and for additional development, and have now been returned to the Board for further adjudication. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then, generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303 (b), Walker v. Shinseki 708 F.3d 1331. (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). To establish service connection for a claimed disability, the following elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). Additionally, other organic diseases of the nervous system, which may include sensorineural hearing and tinnitus, are classified as "chronic diseases" under 38 C.F.R. § 3.309 (a); therefore, 38 C.F.R. § 3.303 (b) also applies. 38 C.F.R. § 3.307; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015) (including tinnitus as an organic disease of the nervous system). Presumptive service connection for "chronic diseases" must be considered on three bases: chronicity during service, continuity of symptomatology since service, and manifestations within one year of the veteran's separation from service. Walker, 708 F.3d at 1338. 1. Entitlement to service connection for right ear hearing loss 2. Entitlement to service connection for left ear hearing loss The Veteran contends that she is entitled to service connection for her bilateral hearing loss because of noise exposure during her military service. See, April 2015 VA 646 Statement of Accredited Representative in Appealed Case. Regarding the first element of her claim, the evidence of record shows that the Veteran is currently diagnosed with a right and left (bilateral) hearing loss. This is reflected in the Veteran's most recent VA audiological examination conducted in September 2021, during which the VA examiner diagnosed the Veteran with a sensorineural hearing loss in both ears, which constitute disabilities for VA purposes. See, September 2021 VA Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ); 38 C.F.R. § 3.385. Hence, the Veteran has current disabilities of right and left ear hearing loss. As to the second element of her claim, in-service exposure, the Veteran clarified during her April 2018 Board hearing that although her military occupational specialty (MOS) during her active service was a Hospital Corpsman (health care specialist technician), all throughout her Reserve service that she was in the information technology (IT) field, specifically in intelligent services (IS), she performed her duties both in an office building and on the "flight line" (where she was exposed to noise consistently from the F-18s) at the naval air station. That this entailed going on the "flight line" for maintenance of ejection seats, which she was specifically certified to do. She further testified that most of the time she was not provided with any hearing protection and that she started to notice gradual hearing loss in 2006, while still in the Reserve service, which continued during her active-duty service, post-service, and to date, resulting in her current bilateral hearing loss diagnosis. Her personnel records confirm her enlistment in the Naval Reserve beginning in 2004 and her participation in at least one extended training assignment during 2005 with the Naval Reserve at New Orleans, Louisiana, as a result of which time she received a medal for her exceptional service at the naval air station at that location. See, April 2018 Hearing Transcript and the Veteran's Personnel Records. The Veteran is considered competent to testify as to observable symptoms such as hearing loss, based on his own lay assertions. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Lay statements may also serve 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 U.S.C. § 1153 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board notes that the September 2021 VA examiner acknowledged that there is some evidence of degradation of the Veteran's hearing in her right ear while in the military, but that her overall hearing acuity remained within normal limits. Further, as noted previously, her military personal record reflects that she was awarded an achievement medal as a Reserve Strike Fighter Squadron, for crisis support readiness and operational support to active-duty units, which the Board finds consistent with the Veteran's testimony. As the Veteran has consistently relayed the specific circumstances of her in-service noise exposure, assertions which are not in dispute, and are consistent with her military service, the Board finds the Veteran competent and highly credible with respect to her observable symptoms of when her hearing loss occurred and that it continued to the present. Thus, the Board has assigned her statements high probative value. In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same, and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, VA shall give the benefit of the doubt to the Veteran. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In weighing these facts, the Board finds that the most credible and probative evidence of record establishes the in-service incurrence of an injury, in this case, the acoustic trauma. As such, the second element of service connection has also been satisfied. As to the final element of her service connection claim, a positive nexus relating the Veteran's current bilateral hearing loss to her miliary service, the September 2021 VA examiner found that for both the Veteran's right and left ear hearing loss, respectively, it is less likely than not (less than 50 percent probability) caused by or a result of an event in military service. However, the Board notes that the VA examiner formulated his opinion of low probability of in-service occurrence (negative nexus) primarily based on the lack of a significant threshold shift and the Veteran's MOS, specifically noting that her MOS in the field of health/medical/dental carries a low probability of noise exposure. The examiner did not dispute that the Veteran's report of the nature of her noise exposure could have resulted in a gradual hearing loss; in fact, as previously referenced, this examiner acknowledged evidence of some degradation of the Veteran's right ear hearing loss during service. Consequently, with respect to the examiner's ultimate conclusion, the Board has assigned this September 2021 examiner's opinion low probative value. In the prior VA examinations conducted in June 2012 and May 2019, the VA examiners also respectively opined that there was a negative nexus. During the June 2012 VA examination, the examiner reported that because the Veteran's hearing was within normal limits, for both ears, then there could not have been a significant threshold shift in the Veteran's hearing; also, that there was a lack of documentation of an Occupational Safety and Health Administration (OSHA) defined standard threshold shift during her military service. In a July 2012 addendum opinion, the examiner's rationale was similar, also finding documentation of normal hearing during the Veteran's military service induction in 1991; also in 2004, and that due to a lack of any significant threshold shift, that it was less likely than not that the Veteran's hearing loss was related to her miliary service. Pursuant to a July 2018 Board remand, a May 2019 Hearing Loss Disability Benefits Questionnaire (DBQ) was obtained. However, the May 2019 VA examiner did not provide a clear nexus opinion, particularly in tandem with the original VA examination report, which led to the need for a June 2019 addendum opinion. The June 2019 addendum opinion also reflects a negative nexus, with the VA examiner reporting that since there was documentation of the Veteran's hearing within normal limits at enlistment, documentation of hearing within normal limits at separation, and a lack of documentation of an OSHA defined standard threshold shift during military service, it was not at least as likely as not that Veteran's current bilateral hearing loss was related to her military service. Notwithstanding these facts, upon further review, the Board finds all of these referenced VA hearing loss examinations and corresponding addendum opinions inadequate and unpersuasive, and thus of low probative weight. This is because the respective examiners did not directly address the impact of the Veteran's report of her in-service significant noise exposure, due to the absence of documentation reflecting the Veteran's report of her symptoms; rather their negative nexus opinions were primarily based on a lack of significant threshold shift in the Veteran's hearing acuity during her miliary service, as specifically noted. However, a medical opinion based solely on the absence of documentation in the record is inadequate, if it does not take into account the Veteran's reports of symptoms and history. Dalton v. Peake, 21 Vet. App. 23 (2007). Furthermore, the Veteran has always reported that she started experiencing symptoms of gradual hearing loss during her military service, which she contends has continued ever since, assertions which are not in dispute, and which the Board finds to be highly credible. In addition, the most recent examiner has conceded that at least some of the Veteran's hearing loss had its onset during service. Therefore, based on all of the foregoing, Board finds that the evidence of record is approximately in equipoise regarding whether the Veteran's current bilateral hearing loss incurred in service. Accordingly, and affording the Veteran the benefit of the doubt, the Board finds that entitlement to service connection for her hearing loss in her right ear and left ear is respectively warranted. 38 U.S.C. §§ 1101, 1131, 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.B. King, 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.