HEARING LOSS

Summary

The veteran, who served from September 1990 to January 1992 as a Hawk missile radar equipment operator, appeals the denial of service connection for right ear hearing loss. The veteran claims his hearing loss is related to hazardous noise exposure during service, specifically from Phase 2 Hawk missile radar equipment. The Board reviewed the evidence, including the veteran's personnel records (DD Form 214), treatment notes, lay statements, and VA examination reports. The Board found the veteran's claim for service connection for right ear hearing loss warranted on a presumptive basis due to continuity of symptomatology. While the September 2024 VA examination was deemed inadequate for relying solely on the lack of in-service documentation and failing to consider the veteran's reports, the Board found the veteran's own testimony credible and consistent with his service. The veteran's reports of hearing loss since service, combined with the in-service MOS and assertions of hazardous noise exposure, satisfied the elements for service connection. Therefore, service connection for right ear hearing loss was granted.

Rationale

Current disability of right ear hearing loss documented; In-service exposure to hazardous noise from Hawk missile radar equipment; Continuity of symptomatology since service; Veteran's lay statements are credible and consistent

Full Decision Text

Citation Nr: 25012100
Decision Date: 09/24/25	Archive Date: 09/24/25

DOCKET NO. 12-00 328A
DATE: September 24, 2025

ORDER

Entitlement to service connection for right ear hearing loss is granted.

FINDING OF FACT

The Veteran's right ear hearing loss was noted in service with continuity of symptomatology since service.

CONCLUSION OF LAW

The criteria for entitlement to service connection for right ear hearing loss have been met. 38 U.S.C. §§ 1110, 1112, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from September 1990 to January 1992. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in May 2024. A copy of the transcript has been associated with the record. 

The Appeals Modernization Act (AMA) automatically applies to all claims for which VA issues notice of an initial decision on or after February 19, 2019. See 38 C.F.R. §§ 3.2400, 19.2. Even if an appeal is initiated in the legacy system, when the notice of a rating decision that first addresses a downstream issue (such as the proper initial rating or effective date) is issued after February 19, 2019, those downstream issues must be appealed and adjudicated under the AMA. See Grantham v. Brown, 114 F. 3d 1156 (Fed. Cir. 1997).

Service Connection

In general, service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 1131; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as organic diseases of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In an opinion dated October 4, 1995, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system. 

Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown
 be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994).

The Board must also fully consider the lay assertions of record. Competent lay evidence is any evidence not requiring that the proponent hs specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed by a lay person, to include observable symptoms. See 38 C.F.R. § 3.159(a)(2); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Further, a lay witness may opine on questions of diagnosis and etiology, provided that such matters are amenable to a lay person's observation. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).

VA is responsible for determining whether the evidence supports the claim or is in relative balance, with a claimant prevailing in either event. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The claimant is entitled to the benefit of the doubt when there is an "approximate" (meaning nearly equal) balance of positive and negative evidence regarding any material determination. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). If the evidence persuasively weighs against a claim, the claim is denied.

1. Entitlement to service connection for right ear hearing loss.  

The Veteran contends that his right ear hearing loss is related to service. 

After reviewing the records, the Board finds that service connection is warranted for right ear hearing loss on a presumptive basis because symptoms of his right ear hearing loss were noted in service and the record demonstrates continuity of symptomatology since service. 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331.

Given that service connection is being granted on a presumptive basis, the Board will not address direct or secondary service connection.

The evidence shows a current disability of right ear hearing loss for VA purposes (38 C.F.R. § 3.385), as reflected in September 2024 VA examination report. Therefore, the first element of service connection is satisfied. 

Regarding the second element of service connection, an in-service occurrence or injury, the Veteran's personnel records show his military occupational specialty (MOS) was 16E10 Hawk FC CRMMER, indicating that he served as a member of command and acquisition or firing section of a Hawk firing platoon. See Certification of Release or Discharge from Active Duty (DD Form 214). He also asserts that he experienced hearing loss after being exposed to hazardous noise in service while working with Phase 2 Hawk missile radar equipment. See January 2006 Loma Linda University Family Medicine Center; May 2008 Loma Linda University Health Care treatment notes; July 2011 VA Examination; August 2011 Statement in Support of Claim; May 2024 Board Hearing Transcript; September 2024 VA examination. Therefore, the Board finds that the Veteran was exposed to hazardous noise in service and the second element of service connection has been met. 

As to the third element of service connection, the Board finds that element has also been satisfied. The September 2024 VA examiner found that the Veteran's right ear hearing loss is not related to service and explained that the Veteran's separation examination showed normal hearing and no threshold shifts while in service. The Board finds this examination inadequate because the examiner relied solely on lack of in-service documentation and failed to consider the Veteran's reports of hearing loss in-service and worsening since then. See Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). However, the Veteran has asserted that he began experiencing hearing loss in service, which has worsened since then. The Veteran is competent to describe the onset and ongoing symptoms of hearing loss,
 third element of service connection, the Board finds that element has also been satisfied. The September 2024 VA examiner found that the Veteran's right ear hearing loss is not related to service and explained that the Veteran's separation examination showed normal hearing and no threshold shifts while in service. The Board finds this examination inadequate because the examiner relied solely on lack of in-service documentation and failed to consider the Veteran's reports of hearing loss in-service and worsening since then. See Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). However, the Veteran has asserted that he began experiencing hearing loss in service, which has worsened since then. The Veteran is competent to describe the onset and ongoing symptoms of hearing loss, as they are experiences within the scope of lay observation. See Jandreau, 492 F.3d at 1376-77. The Veteran's reports of experiencing symptoms of right ear hearing loss since service have been largely internally consistent and are consistent with the circumstances of his service and are therefore credible. 

Consequently, the most probative evidence in this case consists of the Veteran's internally consistent and credible lay statements regarding the onset and duration of his symptoms. As noted above, sensorineural hearing loss is a chronic disease under 38 C.F.R. § 3.309(a) and may be granted service connection based upon the continuity of symptomatology provision of 38 C.F.R. § 3.303(b). The Veteran has a right ear hearing loss disability currently and has complained of right ear hearing loss that began in service. Resolving any doubt in favor of the Veteran, the Board finds that service connection for right ear hearing loss is warranted.

 

 

Caroline B. Fleming

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Michel-Rossi, Mayerline

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.