Citation Nr: 1737460 Decision Date: 09/07/17 Archive Date: 09/19/17 DOCKET NO. 16-28 668 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for right ear hearing loss. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD N. Sangster, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1967 to March 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which granted service connection for a left ear hearing loss disability but denied the claim for a right ear hearing loss disability. The Veteran timely appealed the latter claim. FINDING OF FACT Resolving the benefit of doubt in the Veteran's favor, his right ear hearing loss is related to active duty. CONCLUSION OF LAW The criteria for entitlement to service connection for a right ear hearing loss disability have been met. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran believes his right ear hearing loss disability is a result of his active service. Specifically, he states that he was exposed to loud generator noises in service. The Veteran maintains that his right ear hearing loss started in service and has continued since. Service connection may be established for a disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303, 3.304 (2016). Disability which is proximately due to or the result of a disease or injury incurred in or aggravated by service will also be service-connected. 38 C.F.R. § 3.310 (2016). Service connection may be granted for any disease diagnosed after discharge when the evidence shows that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2016). Service connection is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.30(a) (2016); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2012); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or is legitimately questionable. 38 C.F.R. § 3.303(b) (2016). This alternative means of linking the currently-claimed condition to service is only available if the condition being claimed is one of those specifically identified in 38 C.F.R. § 3.309(a) as chronic, per se. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Sensorineural hearing loss also is eligible for presumptive service connection - as an organic disease of the nervous system - if shown to have manifested to a compensable degree (meaning to at least 10-percent disabling) within one year of the Veteran's separation from service. However, this presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307; 3.309(a). Additional concerning claims for hearing loss, the threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (citing Current Medical Diagnosis & Treatment, Stephen A. Schroeder, et. al. eds., at 110-11 (1988)). But impaired hearing only will be considered to be an actual ratable disability when the auditory threshold in any of the frequencies of 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. That said, it also deserves pointing out, however, that the Court has held that § 3.385 does not preclude service connection for a current hearing loss disability where hearing was within normal audiometric testing limits at time of separation from service. See Hensley, 5 Vet. App. at 159. The Court explained that, when audiometric test results do not meet the regularity requirements for establishing a "disability" at the time of the Veteran's separation from service, he nevertheless may establish his entitlement to service connection for a current hearing loss disability by submitting competent and credible evidence showing the current disability is causally related to his service, as opposed to other ("intercurrent") causes. Id., at 160. See also Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). A review of the Veteran's STRs reflects that he had an audiological evaluation at his April 1967 entrance examination. Puretone thresholds, in decibels, recorded in American Standards Association (ASA) units were: HERTZ 500 Hz 1,000 Hz 2,000 Hz 3,000 Hz 4,000 Hz RIGHT 5 (20) 5 (15) 5 (15) 10 (20) 15 (20) [The figures in parentheses represent conversions of audiometry reported in ASA values to ISO (ANSI) units, and are provided for data comparison purposes] His STRs also shows that he had an audiological evaluation in April 1968 and at his February 1969 separation examination. Because it is unclear whether such thresholds were recorded in using ASA units or ISO-ANSI units, the Board considers the recorded metrics under both standards, relying on the unit measurements most favorable to the Veteran's appeal. Puretone thresholds, in decibels, at the April 1968 evaluation were: HERTZ 500 Hz 1,000 Hz 2,000 Hz 3,000 Hz 4,000 Hz RIGHT 0 (15) 0 (10) 5 (15) Not tested 10 (15) Puretone thresholds, in decibels, at the February 1969 separation examination were: HERTZ 500 Hz 1,000 Hz 2,000 Hz 3,000 Hz 4,000 Hz RIGHT 20 (35) 5 (15) 5 (15) Not tested 15 (20) The Veteran had a VA examination in April 2011. He reported that he had noise exposure from generators and also from listening under headphones. The Veteran also stated that post-service, he had occupational noise exposure working as an automotive mechanic for 30 years. He, however, reported that he used hearing protection on the job. After conducting the necessary tests, the examiner diagnosed the Veteran with mild sloping to moderate/moderately-severe sensorineural hearing loss in the right ear, but opined that it was not related to noise exposure. She based her opinion on the fact that the right ear hearing levels at time of military separation in 1969 were within normal levels. The examiner explained that given this fact and in keeping with the conclusion of the 2006 Institute of Medicine, National Academy of Sciences Study ("Noise and Military Service - Implications for Hearing Loss and Tinnitus") which stated that, based on current understanding of cochlear physiology, there is no evidence for the existence of delayed-onset hearing loss. As support for this claim, the Veteran submitted a private medical opinion dated July 2011 from Dr. D.S., who opined that the Veteran's right ear hearing loss disability was as likely as not due to his military experience and noise exposure. He observed that the Veteran had sensorineural components of his hearing loss in both ears and, therefore, hearing loss in both ears could be contributed by military noise exposure. The record includes a May 2016 VA opinion regarding the differing opinions of record. This examiner agreed with the April 2011 VA examiner's findings that the right ear hearing loss was not related to noise exposure on active duty. In disagreeing with Dr. D.S.'s opinion, the examiner commented that that opinion was rendered without review of any previous hearing tests and more importantly without review of the military puretone tests, which showed normal puretone thresholds in the right ear on all tests with no change in hearing sensitivity over time. She explained that sensorineural hearing loss secondary to noise exposure reveals a different configuration than the flat configuration, which was currently recorded. Without review of documents showing onset of the loss and progression over time, she opined that it could not be assumed that the hearing loss was related to noise exposure during a two year period of time, which was more than 40 years prior to the test completed by Dr. D.S. in 2011. Considering the evidence of record, the Board finds that a right hearing loss disability is warranted. While the findings of a physician are medical conclusions that the Board cannot ignore or disregard, the Board is free to assess medical evidence and is not obligated to accept a physician's opinion. Willis v. Derwinski, 1 Vet. App. 66 (1991); Wilson v. Derwinski, 2 Vet. App. 614 (1992). When assessing the probative value of a medical opinion, the access to claims file and the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The objective medical evidence of record shows that the Veteran has sensorineural hearing loss in the right ear in accordance with 38 C.F.R. § 3.385, as demonstrated on VA examination in April 2011. While both the April 2011 and May 2016 VA examiners opined that the Veteran's right ear hearing loss was not related to noise exposure in service, the reached their conclusions explaining that the Veteran's STRs showed normal puretone thresholds in the right ear on all tests with no change in hearing sensitivity over time. This, however, is not accurate as the STRs reflect shifts in the Veteran's puretone results in the right ear throughout service. Therefore, the Board will afford more weight to Dr. D.S.'s opinion that the Veteran's right ear sensorineural hearing loss disability was as likely as not due to his military experience and noise exposure. Moreover, the Board recognizes that Veteran's statements that his right ear hearing loss started in service and has continued as competent and credible. Therefore, resolving all doubt in the Veteran's favor, service connection for a right ear hearing loss disability is warranted. ORDER Entitlement to service connection for a right ear hearing loss is granted. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs