Citation Nr: 18148427 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 14-11 579 DATE: November 7, 2018 ORDER Service connection for right ear hearing loss is granted. REMANDED A compensable rating for left ear hearing loss is remanded. FINDING OF FACT The Veteran’s right ear hearing loss is related to service. CONCLUSION OF LAW The criteria for service connection for right ear hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1970 to July 1975. The case is on appeal from a March 2013 rating decision. Service connection for right ear hearing loss Legal Criteria Service connection may be granted 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. “To establish a right to compensation for a present disability, a veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service”—the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 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. Analysis The Veteran contends that his right ear hearing loss is related to service. It is undisputed that he has a hearing loss disability as defined by 38 C.F.R. § 3.385. During service, he was a jet engine technician during service, which exposed him to loud noise without the benefit of hearing protection. He is already service connected for left ear hearing loss, and the remaining question is whether his right ear hearing loss is related to service. His medical examination upon entry into service, conducted in December 1969, reveals the following pure tone thresholds: HERTZ Dec. 1969 500 1000 2000 3000 4000 RIGHT 10 5 5 X 25 Left 25 5 5 X 30 Given the time at which this test was conducted, it is not entirely clear whether the American Standards Association (ASA) standards or the International Standards Organization—American National Standards Institute (ISO-ANSI) standards were used for this test. However, VA assumes military hearing tests from 1969 on were conducted according to the ISO-ANSI standard. Several audiograms were conducted during service, all of which are assumed to have used the ISO-ANSI standards given the dates at which they were conducted. Testing in October 1971 revealed the following: HERTZ Oct. 1971 500 1000 2000 3000 4000 RIGHT 15 5 0 0 5 LEFT 15 10 10 10 45 It was noted that the Veteran had noise exposure from all jet aircraft and that the estimate of his hearing was “good.” Testing in October 1974 revealed the following: HERTZ Oct. 1974 500 1000 2000 3000 4000 RIGHT 10 0 5 10 40 LEFT 15 5 0 0 50 His hearing was tested again in January 1975, and pure tone thresholds were as follows: HERTZ Jan. 1975 500 1000 2000 3000 4000 RIGHT 10 5 10 5 40 LEFT 15 5 5 0 50 Based on the results of the January 1975 testing, the Veteran was said to have fair hearing. Noise exposure was listed as jet engine run-up. Additionally, there were several threshold shifts noted as compared to a reference audio test. Notably, these test results would constitute hearing impairment for VA purposes in both ears. Upon his separation from service in May 1975, testing revealed the following pure tone thresholds: HERTZ May 1975 500 1000 2000 3000 4000 RIGHT 15 10 5 5 30 LEFT 15 5 0 5 45 The Veteran did not report any ear problems at that time and the ear portion of the examination was listed as normal. Nevertheless, the left ear results would be hearing impairment for VA purposes. The Veteran notes that there was a noticeable threshold shift during service as reflected in the October 1974 and January 1975 testing, though this is not necessarily reflected in his separation examination. In October 2013 correspondence, the Veteran also stated that he was told by a military physician in July 1975 that he had lost 90 percent of his high frequency hearing. A medical opinion was obtained as part of a March 2013 VA examination. At that time, the examiner opined that right ear hearing loss was less likely than not related to service. He also noted that scientific literature concludes that delayed onset of hearing loss from noise exposure is extremely unlikely. Further, threshold shifts between the entrance and separation medical examinations were explained as within the range of normal inter-test variability. However, the examiner failed to explain the October 1974 and January 1975 pure tone results which show larger threshold shifts. A second medical opinion was obtained in July 2014. This examiner opined that hearing loss was less likely than not related to service because there was not a significant threshold shift evidenced between the entrance and separation examinations. In August 2018, the Board requested an expert medical opinion from the Veterans Health Administration (VHA). Specifically, it was to address whether the December 1969 service audio test was conducted according to ASA or ANSI-ISO, that the January 1975 service audio test seeming to show right ear hearing impairment for VA purposes; and the Veteran’s lay statements and theory of an in-service threshold shift for the right ear. The opinion was obtained in October 2018. The author is a physician at a VA Medical Center who has specialties in otology, neurotology, and is a head and neck surgeon. Thus, a medical professional with great expertise in this area of medicine. The physician thought it was reasonable that ANSI-ISO standards were sued but that it did not affect the opinion. Regardless of whether ASA or ANSI-ISO measurements were used, the Veteran’s right ear hearing at the 4000 Hertz level shifted during service. Further, the Veteran had a right ear hearing loss disability for VA purposes in January 1975. The physician provided an opinion that it is more likely than not that the Veteran’s hearing loss in the right ear (and left) is related to his in-service noise exposure. In support of his conclusion, the physician noted that scientific research regarding noise-induced hearing loss suggests that pure tone audiometry is insensitive to damage to the hearing pathway and permanent sequelae of noise injury, including hair cell-auditory neuron synapse. Large numbers of these synapses can be lost after noise exposure even though hearing thresholds may return to normal. This affects the auditory processing and detection of signals in noise. The progressive hearing loss documented in the Veteran’s post discharge audiograms in the absence of frequent noise exposure supports this argument. The October 2018 VHA expert medical opinion is the only one of record that the Board finds persuasive. The physician fully considered the Veteran’s medical history, history of noise exposure, and supported his conclusion with discussion of the relevant medical literature. As a result, the Board finds that the Veteran’s right ear hearing loss is related to service, particularly when resolving reasonable doubt in his favor. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection for right ear hearing loss is granted. REASONS FOR REMAND A compensable rating for left ear hearing loss. As a result of the grant of service connection for right ear hearing loss herein, the Veteran’s hearing loss rating must be considered on the basis of functional impairment in both ears. See 38 C.F.R. § 4.85(f). So that the RO can address this newly created issue in the first instance, the Board will remand the claim. A brief summary of the relevant audiology results is provided below. The Veteran was first afforded a VA examination of his hearing in March 2013. That examination revealed the following pure tone thresholds: HERTZ Mar. 2013 500 1000 2000 3000 4000 RIGHT 30 45 55 80 85 LEFT 25 40 60 80 85 The average pure tone threshold bilaterally was 66.25 Db. Word recognitions scores were 40 percent bilaterally. The Veteran stated, however, that the hearing test was conducted under ideal conditions in a soundproof booth, where as day-to-day he has problems hearing when there is background noise. There is no indication that the examiner conducted the testing under anything but accepted medical practice, though, in rating his disability, the influence of background noise is, and should be, considered. A second VA examination was conducted in July 2014, at which time the following pure tone thresholds were revealed: HERTZ July 2014 500 1000 2000 3000 4000 RIGHT 25 40 55 70 75 LEFT 25 40 50 70 75 The average pure tone threshold in the right ear was 60 dB and in the left ear was 58.57 dB. Word recognition scores were 88 percent for the right ear and 90 percent for the left ear. Further, an examination is necessary, as there is some inconsistency in the speech discrimination results. An examiner should attempt to explain any reason for the discrepancy. The matter is REMANDED for the following action: Afford the Veteran a VA examination of his now service-connected bilateral hearing loss. In doing so, please attempt to explain the reasons for discrepancy between the March 2013 speech discrimination scores of 40 percent bilaterally and July 2014 speech discrimination scores of 88 percent for the right ear and 90 percent for the left ear. A complete rationale should be provided for any opinion rendered including for a conclusion that to offer such opinion is not possible without resort to mere speculation. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. George