Citation Nr: 23065521 Decision Date: 12/11/23 Archive Date: 12/11/23 DOCKET NO. 20-19 372 DATE: December 11, 2023 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT Resolving reasonable doubt in his favor, the Veteran's bilateral hearing loss is at least as likely as not related to service. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1989 to November 2000. This matter comes before the Board of Veterans' Appeals (Board) from an October 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a hearing before the undersigned Veteran Law Judge in December 2021. A transcript of the hearing is of record. Service Connection 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, including organic diseases of the nervous system such as 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). For the purposes of applying the law administered by VA, impaired hearing will be considered to be 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 the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. As an initial matter, the Board finds that the Veteran has a current hearing loss disability, noted upon VA examination in September 2018. The Veteran has asserted, including during his hearing before the undersigned, that his duties as a mechanic in service exposed him to diesel engine noise and that he first noticed hearing loss in service and that it has progressed in severity since. He also described noise exposure during artillery and weapons training. The Board finds that exposure to engine noise is consistent with the circumstances of his Military Occupational Specialty (MOS) as a Light Vehicle Mechanic. His DD Form 214 notes this was a nearly 12-year assignment. Additional, and notably, the Veteran is in receipt of service connection for tinnitus due to in-service noise exposure. Thus, the Veteran has also established an in-service injury for service connection purposes. The Veteran's claim has been denied, however, based in part on the opinion of a VA examiner who found it less likely than not that his current hearing loss disability is related to his in-service noise exposure. The Board, however, finds this opinion to be of little probative weight. In that regard, the Board first notes that the VA examination report states that the Veteran's DD Form 214 as not available for review, suggesting that the examiner could not confirm the Veteran's statements regarding his exposure to engine noise in the performance of his duties. As noted above, however, the Board does have access to the Veteran's military personnel records, including his DD Form 214, and has determined that that his reports of noise exposure are consistent with his MOS. Further, the crux of the examiner's negative opinion appears based on a finding that the Veteran's hearing loss preexisted his military service and, as his hearing was normal at service separation, was not aggravated by such service. Generally, a veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service. 38 U.S.C. §§ 1111, 1137; 38 C.F.R. § 3.304(b). This presumption of soundness can be overcome with clear and unmistakable evidence both that a disability preexisted service and was not aggravated by service. Id. The Board notes after review of the Veteran's service treatment records, however, that his service entrance examination in 1988, while showing some higher threshold levels bilaterally at 4000 and 6000 Hz, does not actually show hearing loss disability for VA purposes. See 38 C.F.R. § 3.385; McKinney v. McDonald, 28 Vet. App. 15, 29 (2016) (when a veteran has hearing loss upon entry that does not meet the VA definition of a hearing loss disability, there is no pre-existing "defect" for the purposes of VA disability benefit consideration). As such, the Board finds that the Veteran is presumed to have been sound at entry. In light of the foregoing, and after review of the remaining evidence, the Board will resolve all doubt in the Veteran's favor and find that service connection for bilateral hearing loss is warranted. The Board acknowledges that the Veteran's service treatment records do not indicate a hearing loss disability. However, the absence of in-service evidence of hearing loss is not fatal to a claim for service connection (see Hensley v. Brown, 5 Vet. App. 155, 159 (1993)). Again, the Veteran reported an in-service onset of his hearing loss. As a layperson, the Veteran is competent to testify to having been exposed to loud noises during service and experiencing hearing loss. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Moreover, in granting the Veteran service connection for tinnitus, VA has conceded the Veteran's asserted noise exposure, and the Veteran has reported hearing difficulties since service. Accordingly, service connection for bilateral hearing loss is granted. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Scarduzio, 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.