Citation Nr: 1753528 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 12-31 046 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for left ear hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Neal, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1965 to January 1967, including service as a light vehicle driver. The current matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating action of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In March 2015 and May 2017, the Board remanded the matter to obtain additional medical opinions regarding the etiology of the Veteran's left ear hearing loss. As discussed below, the Board finds those opinions inadequate. However, in light of the favorable decision herein, further development of the evidence is unnecessary. FINDING OF FACT The competent and credible evidence is in relative equipoise as to whether the Veteran's left ear hearing loss is caused by, or related to, his active duty. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for left ear hearing loss have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify & Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014) defined VA's duty to assist a veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). However, in view of the Board's favorable decision herein, further assistance is unnecessary to aid the Veteran in substantiating his claim of entitlement to service connection for left ear hearing loss. Legal Criteria & Analysis Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2006); 38 C.F.R. § 3.303. If an organic disease of the nervous system, such as sensorineural hearing loss, becomes manifest to a degree of 10 percent or more during the one-year period following a Veteran's separation from qualifying service, the condition may be presumed to have been incurred in service, notwithstanding that there is no in-service record of the disorder. 38 U.S.C.A. §§ 1101, 1112 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2017). In cases of chronic diseases, such as hearing loss, it is not enough that an injury or disease occurred in service; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). For the purposes of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of those 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 (2017). It has been established that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a medical relationship between the Veteran's in-service exposure to loud noise and current disability. Hensley v. Brown, 5 Vet. App. 155 (1993). The Board notes that the directives in Hensley are consistent with 38 C.F.R. § 3.303(d). Based on knowledge of service audiometric practice, it is assumed that service department audiometric tests prior to October 31, 1967, were in ASA (American Standard Association) units, and require conversion to ISO units. The ASA units generally assigned lower numeric scores to hearing loss than do the ISO (International Organization for Standardization) units. Conversion to ISO units is accomplished by adding 15 decibels to the ASA units at 500 Hertz, 10 decibels to the ASA units at 1000 Hertz, 2000 Hertz, and 3000 Hertz, and 5 decibels to the ASA units at 4000 Hertz. See VA Interim Issues 21-66-16, 21-66-17 (June 6, 1966); 10-66-20 (June 8, 1966); DM&S Manual M-2, Part XVIII, Chapter 4, paragraph 4.02, Use of International Standards Organization (ISO) for Audiological Examinations. In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (lay testimony is competent to establish the presence of observable symptomatology). Once evidence is determined to be competent, the Board must then determine whether such evidence is also credible. Id. at 469 (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to the appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. According to service treatment records (STRs), the Veteran underwent an enlistment examination in January 1965. See January 1965 Report of Medical Examination. Audiogram results reflect pure tone thresholds, in decibels, as: Hertz 500 1,000 2,000 3,000 4,000 Right Ear 35 15 15 15 25 Left Ear 35 15 20 35 30 The Veteran underwent a separation examination in December 1966. See December 1966 Report of Medical Examination. An audiometric test yielded the following results: Hertz 500 1,000 2,000 3,000 4,000 Right Ear 20 20 25 Not tested 50 Left Ear 40 20 25 Not tested 25 A VA examination regarding the Veteran's hearing loss took place in January 2011. See January 2011 Compensation and Pension Exam Report. Results of the audiometric test were as follows: Hertz 500 1,000 2,000 3,000 4,000 Right Ear 25 25 55 60 65 Left Ear 25 30 60 70 65 In addition, a Maryland CNC Word List Speech Recognition test resulted in a score of 96 percent bilaterally. The examiner diagnosed the Veteran bilateral high frequency hearing loss. Subsequently, the RO granted service connection for right ear hearing loss and tinnitus due to military noise exposure. A July 2013 VA examination confirmed the Veteran's diagnosis of left ear hearing loss. See July 2013 Compensation and Pension Exam Report. However, the examiner could not provide an opinion regarding the etiology of the Veteran's left ear hearing loss because the medical record was not made available for review. Pursuant to the Board's March 2015 remand, the RO obtained an addendum opinion from the examiner of the January 2011 VA examination to address the threshold shifts observed in service and whether the Veteran's pre-existing hearing loss was aggravated by his service. See May and September 2015 Audiology Compensation and Pension Examination Consultation Notes. The examiner determined that the Veteran's pre-existing hearing loss was not permanently worsened in service. In addition, the examiner stated that the observed threshold shift during service was not significant. She reasoned that the slight change could have been due to several reasons, including a normal progression of loss, tester variability, testing environment, and the Veteran's motivations at the time of testing. Then, in June 2017, the Veteran underwent a VA hearing examination pursuant to the Board's May 2017 remand. See June 2017 Hearing Loss and Tinnitus Disability Benefits Questionnaire. Specifically, the Board asked the examiner to explain the significance of the absence or presence of threshold shifts and the statements from the Veteran regarding the onset and continuity of symptomatology of hearing loss. The results of the audiometric test were as follows: Hertz 500 1,000 2,000 3,000 4,000 Right Ear 60 65 80 80 100 Left Ear 50 55 85 85 100 Further, a Maryland CNC Word List Speech Recognition test resulted in a score of 0 percent bilaterally. The examiner also noted that the Veteran reported a decrease in his hearing since his separation from service, during which time he worked as a truck driver and with ammunition. Id. In addition, the examiner noted that the Veteran worked in a ship yard, in a machine shop, and on the assembly line after leaving the military without regular ear protection. She concluded that the Veteran's left ear hearing loss was not at least as likely as not caused by, or a result of, his service, citing his extensive history of working in noise upon his separation from service. She also found the in-service threshold shifts were not significant. Simultaneously, she stated that "one cannot determine the degree of hearing loss related to non-military noise exposure." Id. Upon review of the evidence, the Board finds that the competent and credible evidence is in relative equipoise as to whether the Veteran's left ear hearing loss is caused by, or related to, his active duty. First, the Board finds that the June 2017, September 2015, and May 2015 medical opinions are inadequate. The June 2017 examiner concluded that the Veteran's left ear hearing loss is not related to his service. However, her determination that one cannot conclude to what degree the Veteran's left ear hearing loss was related to non-military noise exposure as opposed to military noise exposure undermines her own conclusion. In addition, while the examiner of the May 2015 examination and September 2015 addendum indicated that the Veteran's left ear hearing loss was not aggravated by service, no rationale was provided. The Board acknowledges the Veteran's competent testimony that he has experienced worsening hearing loss since his separation from service. See June 2017 Hearing Loss and Tinnitus Disability Benefits Questionnaire; Layno, 6 Vet. App. at 470. Moreover, the Board finds that the Veteran's complaints of hearing loss since his separation constitute evidence of continuity of symptomatology. See 38 C.F.R. § 3.303(b).There is no evidence to doubt the Veteran's credibility. However, the Board does not find the Veteran, as a layperson, is competent to determine the extent to which his hearing loss is due to military noise exposure as opposed to noise exposure during his employment after service. See Jandreau v. Nicholson, 492 F.3d at 1377. Simultaneously, the medical evidence of record does not adequately answer the question of whether the Veteran's left ear hearing loss was aggravated by service. Nonetheless, VA has already conceded that the Veteran's service-connected right ear hearing loss and tinnitus are related to military noise exposure, and the Veteran's competent and credible testimony reflects that the hearing of both ears has worsened since service. Accordingly, reasonable doubt must be resolved in favor of the Veteran. Service connection for left ear hearing loss is warranted. 38 U.S.C.A. § 5107 (b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for left ear hearing loss is granted. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs