Citation Nr: 1750150 Decision Date: 11/06/17 Archive Date: 11/17/17 DOCKET NO. 11-31 558 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for left ear hearing loss. 2. Entitlement to service connection for right ear hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Bosely, Counsel INTRODUCTION The Veteran had active service from January 1960 to December 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The issue was certified to the Board as service connection for bilateral hearing loss. The Board has bifurcated the right ear and the left ear to expedite the positive outcome regarding the left ear hearing loss granted herein below. In August 2014, the Veteran withdrew his prior request for a Board hearing. See 38 C.F.R. §§ 20.700, 20.702(e), 20.704(e). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issue of service connection for right ear hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's left ear loss disability is likely due to noise exposure during service. CONCLUSION OF LAW The criteria to establish service connection for a left ear hearing loss disability are met. 38 U.S.C.A. §§ 1101, 1110, 1131, 1154, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that he has hearing loss as a result of noise exposure during service. In a December 2008 statement, he explained that his ears were damaged from being around big diesel generators mounted on the bed of a 5 ton truck and the trailer behind the truck. He had to stay close to the generators almost 24 hours a day when on maneuvers, and he slept right next to them. In an August 2014 statement, he added that his hearing was damaged from exposure to various military weapons as well. A. Applicable Law Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Thresholds for normal hearing are between 0 and 20 decibels, and higher thresholds show some degree of hearing loss. Hensley, 5 Vet. App. at 157. For the purposes of applying the laws 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, 4000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 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. B. Discussion In this case, service connection is warranted for a left ear hearing loss. The record on appeal confirms a present diagnosis of a hearing loss disability in the left ear. At a private audiologic evaluation in April 2009, his hearing acuity was as follows: HERTZ 500 1000 2000 3000 4000 LEFT 10 15 35 55 65 (Speech recognition scores were given, but not using the Maryland CNC test.) The examiner diagnosed a hearing impairment with a "recruitment problem." (The Board notes that a "recruitment problem" is a hearing loss coupled with low tolerance to sound. American Academy of Otolaryngology-Head and Neck Surgery, Hyperacusis: An Increased Sensitivity to Everyday Sounds, http://www.entnet.org/?q=node/1315 (last visiting October 2017). The Veteran underwent a VA audiological examination in April 2009. His auditory thresholds upon puretone audiometry testing were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 15 25 35 60 60 Speech recognition scores were 88 percent left ear. The Veteran underwent a second VA audiological examination in January 2013. His auditory thresholds upon puretone audiometry testing were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 5 20 45 55 65 Speech recognition scores were 92 percent left ear. Because auditory thresholds in the left ear at these evaluations were 40 decibels or greater in any of the frequencies, a hearing loss for VA purposes is established. See 38 C.F.R. § 3.385. Therefore, the first requirement to establish service connection, evidence of a current disability in the left ear, has been met. See Davidson, 581 F.3d at 1316. Next, the evidence of record makes it is as likely as not that the Veteran was exposed to noise during service. As given above, the Veteran maintains that he was exposed to noise during service from various weapons and from diesel generators. His specialty during service was Power Generator Specialist. This specialty is not listed in VA's Duty Military Occupational Specialty (MOS) Noise Exposure Listing. See VBA Manual M21-1, III.iv.4.B.4.e, Considering the Duty MOS Noise Exposure Listing and Combat Duties. Nonetheless, the Veteran's own statements are competent and credible evidence of noise exposure. See Fountain v. McDonald, 27 Vet. App. 258, 274-75 (2015). It is also within common knowledge and experience to understand that power generators are noisy. See Colorado v. McDonald, No. 15-0994, 2016 U.S. App. Vet. Claims LEXIS 867, at *17 (June 9, 2016) (nonprecedential) (nothing prohibits the Board from relying on reasonable inference in matters of common knowledge or experience). Therefore, the evidence is in a state of relative equipoise in showing that the Veteran at least as likely as not experienced noise exposure during service, which satisfies the second requirement to establish service connection. Although he was exposed to noise during service, there is no indication of in-service onset of hearing loss. At his January 1960 service entrance examination, a whispered voice test was 15/15. At service separation in October 1962, his audiometry results were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 0 (15) 0 (15) -5 (5) -- 5 (10) At that time, it is assumed that the audiometric test results were reported in standards set forth by the American Standards Association (ASA), whereas the current standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison, the ASA standards must be converted to ISO-ANSI standards. The converted standards are given in parentheses. Finally, the evidence tends to make it at least equally likely that the Veteran's current left ear hearing loss is related to the noise exposure during service. On this question, there is some conflicting evidence. In favor of the claim, a private audiologist in April 2009 concluded that the Veteran's hearing loss and recruitment problem was likely initiated in military service. The Board notes that the private audiologist did not give a rationale explaining how this positive opinion was reached. Nonetheless, it is still some favorable evidence supporting a nexus. Similarly, the Veteran underwent a consultation with VA Otolaryngology in July 2009. It was noted that he had significant history of noise exposure sitting next to generators throughout his working life. On follow-up in March 2010, it was concluded that the Veteran had an asymmetric hearing loss likely due to noise exposure. This otolaryngologist did not specify that it was the in-service noise exposure likely having caused the hearing loss. Nonetheless, the earlier evaluation noted the Veteran's history of noise exposure next to generators "throughout his working life." Because his "working life" included his military service, it is assumed that the otolaryngologist intended to include the in-service noise exposure as a contributing favor. Therefore, the opinion tends to support a nexus to the noise exposure during service. In rebuttal to these positive opinions, the Veteran underwent a VA examination in April 2009. The VA examiner, writing in a May 2009 addendum, concluded that it is not likely that military noise exposure caused the Veteran's hearing loss. The examiner explained that the enlistment examination from January 1960 showed whispered voice test to be within normal limits, and upon a separation examination in October 1962, the Veteran's hearing was found to be normal in both ears at all test frequencies. The April 2009 VA examiner gave a supporting rationale for this negative opinion. Yet, the VA examiner gave no indication that the converted standards--from ASA to ISO-ANSI--were considered. The examiner did not indicate that they were considered, and the Board can find no basis to assume that they were. Correspondingly, the Board has no way to know whether the examiner's opinion would have changed if the converted standards had been considered. Despite this ambiguity in the examiner's opinion, a remand for clarification is not needed as the positive opinions of record are sufficiently probative to establish that the Veteran's current left ear hearing loss most likely resulted, at least in part, from his in-service noise exposure. Accordingly, the evidence is in equipoise on the nexus element, and this requirement is established. In light of the foregoing, after resolving all reasonable doubt in the Veteran's favor, the Board finds that the evidence is in a state of relative equipoise on all material elements of the claim, including the nexus requirement. Accordingly, the claim of service connection for the left ear hearing loss disability is granted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Fagan, 573 F.3d at 1287 (quoting 38 U.S.C.A. § 5107(b)). As this outcome represents a complete grant of the benefit sought on appeal, no discussion of VA's duties to notify and assist is necessary. ORDER Service connection for a left ear hearing loss is granted. REMAND The claim of service connection for a right ear hearing loss must be remanded for a new VA examination. The audiologic evaluations currently of record do not indicate a hearing impairment in the right ear meeting VA's definition of a hearing loss disability under 38 C.F.R. § 3.385. In an October 2017 appellate brief, however, the Veteran's representative argued that the evidence currently of record does not reflect the current disability picture. The representative indicated that a new VA examination should be arranged. Read liberally, the representative's statement is interpreted as asserting that the Veteran's hearing acuity has decreased since he was last examined in April 2009, more than 7 years ago. In light of these contentions, a remand is necessary to arrange for new VA examination to determine whether he has a current right ear hearing loss disability for VA compensation purposes and whether it is related to service. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Schedule the Veteran for a VA examination to assess the current nature and severity of his right ear hearing impairment. The examiner is to determine whether the Veteran has a right ear hearing loss disability for VA compensation purposes. If so, then he or she is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that such hearing loss had onset during service or within the initial year after separation; or is otherwise related to service, to include exposure to loud noise therein. A rationale for the opinion expressed should be provided. The examiner is advised that the Board finds that it is at least as likely as not that the Veteran experienced loud noise exposure during service. 2. After any further action needed as a consequence of the development completed above, readjudicate the claim with consideration of all pertinent evidence and legal authority and addressing all relevant theories of entitlement. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations. The Veteran and his representative should be afforded the appropriate time period to respond. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs