Citation Nr: 18143409 Decision Date: 10/19/18 Archive Date: 10/18/18 DOCKET NO. 16-22 128 DATE: October 19, 2018 ORDER Entitlement to service connection for left ear hearing loss is granted. REMANDED Entitlement to service connection for right ear hearing loss is remanded. FINDING OF FACT The Veteran’s left ear hearing loss is related to his in-service acoustic trauma. CONCLUSION OF LAW The criteria for service connection for left ear hearing loss are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1997 to October 2013. The Veteran has been awarded the Combat Action Badge. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). With respect to the claim for service connection for left ear hearing loss, the RO last adjudicated the claim in a February 2017 Supplemental Statement of the Case (SSOC). The Board notes that in August 2018, the RO added a VA examination for bilateral hearing loss to the record. However, given the Board’s award of service connection for left ear hearing loss below, a remand for an issuance of an SSOC for this issue is not necessary. 1. Entitlement to service connection for left ear hearing loss Service connection will be granted if the evidence demonstrates that current disability resulted from a disease or injury incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for listed chronic diseases (to include hearing loss) when the disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Under § 3.303(b), an alternative method of establishing the second and/or third elements of service connection for a listed chronic disease is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a)). In relevant part, 38 U.S.C. § 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 1331, 1337 (Fed. Cir. 2006) (“[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence”). “Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology.” Savage v. Gober, 10 Vet. App. 488, 496 (1997) (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (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 any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 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, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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. Service treatment records (STRs) in February 2000 document audiometric testing reflecting pure tone thresholds as follows: HERTZ 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 5 5 0 5 5 LEFT 5 5 10 15 25 In October 2001, audiometric testing reflects pure tone thresholds as follows: HERTZ 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 10 5 10 10 5 LEFT 15 10 10 15 15 In October 2003, audiometric testing reflects pure tone thresholds as follows: HERTZ 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 10 5 10 5 5 LEFT 5 5 10 15 20 In May 2006, audiometric testing reflects pure tone thresholds as follows: HERTZ 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 0 5 10 10 10 LEFT 10 10 10 20 25 In November 2007, audiometric testing reflects pure tone thresholds as follows: HERTZ 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 10 5 10 10 20 LEFT 20 15 15 25 30 In February 2008, audiometric testing reflects pure tone thresholds as follows: HERTZ 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 0 5 5 5 15 LEFT 10 15 5 5 55 A June 2014 VA examination report reflects an audiogram with pure tone thresholds, in decibels, as follows: HERTZ 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 25 15 10 15 20 LEFT 15 20 20 25 35 Speech audiometry revealed speech recognition ability of 100 percent bilaterally using Maryland CNC tests. The examiner opined that there was left ear mild hearing loss of 35 decibels at 4000 Hz and moderate hearing loss of 45 decibels at 6000 Hz, but that all other test frequencies were within normal limits. Therefore, there was no ratable hearing loss for the left ear for VA compensation purpose. A March 2016 VA examination report reflects an audiogram with pure tone thresholds, in decibels, as follows: HERTZ 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 10 10 10 15 20 LEFT 15 15 15 25 35 Speech audiometry revealed speech recognition ability of 96 percent bilaterally using Maryland CNC tests. The examiner opined that it was at least as likely as not that the Veteran’s left ear hearing loss that was not considered hearing loss under VA standards was due to exposure to artillery, tanks, and mortars while serving in supply and logistics in the military. This was based on the Veteran’s report of noise exposure, review of the medical records, and current audiometric data. A February 2017 VA examination report reflects an audiogram with pure tone thresholds, in decibels, as follows: HERTZ 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 15 15 5 20 25 LEFT 15 15 20 25 40 There were no speech audiometry results and the VA examiner did not provide an opinion. An August 2018 VA examination report reflects an audiogram with pure tone thresholds, in decibels, as follows: HERTZ 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 15 10 10 15 25 LEFT 10 15 15 20 40 Speech audiometry revealed speech recognition ability of 100 percent bilaterally using Maryland CNC tests. The examiner opined that it was at least as likely as not that the Veteran’s left ear hearing loss was due to noise exposure while in the military. This was based on the Veteran’s report of noise exposure from tanks and artillery while working in supply with them, as well as from review of the medical records showing degradation of hearing while in the military and current audiometric data. Upon review of the evidence, the Board finds that service connection for left ear hearing loss is warranted. Here, the February 2017 and August 2018 VA examinations reflect hearing loss of 40 decibels or greater at 4000 Hz, which meets the criteria for hearing loss under 38 C.F.R. § 3.385. Thus, the Veteran has a current disability and meets the first prong for service connection. In addition, the Veteran was awarded the Combat Action Badge, and in-service exposure to acoustic trauma has been conceded. 38 U.S.C. § 1154(b). There was also a reading of 55 dB at 4000 Hz on the in-service audiogram in February 2008. Therefore, the Veteran had an in-service injury and meets the second prong for service connection. Finally, the March 2016 and August 2018 VA examiners provided a positive nexus between the Veteran’s in-service acoustic trauma and his current left ear hearing loss, opining that the Veteran’s hearing loss was at least as likely as not due to in-service noise exposure. Thus, the Veteran meets the third prong for service connection. Entitlement to service connection for left ear hearing loss is therefore warranted. REASONS FOR REMAND 1. Entitlement to service connection for right ear hearing loss is remanded. With respect to the claim for service connection for right ear hearing loss, the RO last adjudicated the claim in a February 2017 SSOC. The Board notes, however, that in August 2018, the RO added a VA examination for the Veteran’s hearing loss to the record. However, the RO has not issued an SSOC reflecting adjudication of the claim in light of such evidence. In this regard, the Board points out that the appellate scheme set forth in 38 U.S.C. § 7104(a) contemplates that all evidence will first be reviewed by the agency of original jurisdiction (AOJ) so as not to deprive the claimant of an opportunity to prevail on his claims at that level. See generally Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Pursuant to 38 C.F.R. § 20.1304(c), any pertinent evidence submitted to the Board by the AOJ after the certification of appeal must be referred to the AOJ for review, unless such procedural right is waived by the Veteran or his representative, or unless the Board determines that the benefits to which the evidence relates may be fully allowed on appeal without such referral. As such, a remand is necessary for an SSOC for the AOJ to consider the new evidence. The Board notes that, in cases in which the claimant or his representative, after the AOJ received a substantive appeal, submits evidence to the AOJ or the Board for consideration in connection with the issues with which disagreement has been expressed, the evidence is subject to initial review by the Board unless it is requested that the AOJ initially review the evidence. 38 U.S.C. § 7105(e). This provision applies to cases such as this one in which the substantive appeal was filed 180 days after the date of the enactment of the Camp Lejeune Act, i.e., after February 2013. See Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law (PL) 112-154, section 501. However, this provision applies only to evidence that was submitted to the AOJ or the Board by the claimant or his representative. In this case, the evidence was created and associated with the claims file by VA. The matter is REMANDED for the following action: 1. Issue an SSOC readjudicating the claim for service connection for right ear hearing loss based on the new evidence in the record. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Leifert, Associate Counsel