Citation Nr: 18149275 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 16-36 016A DATE: November 9, 2018 ORDER Entitlement to service connection for left ear hearing loss is granted. REMANDED Entitlement to service connection for benign paroxysmal positional vertigo, including as secondary to bilateral hearing loss, is remanded. FINDINGS OF FACT 1. The Veteran experienced acoustic trauma during his active duty service. 2. Resolving all reasonable doubt in favor of the Veteran, his currently diagnosed left ear sensorineural hearing loss is etiologically related to his military noise exposure. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for left ear hearing loss have been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1967 to August 1971. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision. In July 2017 the Veteran and his wife testified at a hearing before the undersigned Veterans Law Judge. A copy of the proceedings is associated with the electronic claims file. Service Connection The Veteran asserts that his current left ear hearing loss developed as a result of his in-service exposure to hazardous noise during his active duty service. The Veteran’s military occupational specialty (MOS) was noted to be that of a stock clerk. In his July 2017 hearing, the Veteran indicated that part of his job duties as a stock clerk while aboard a ship was to manage receipt of supplies from incoming supply flights. The Veteran testified that this required his presence on the flight line. He further testified that he wore hearing protection on the flight line, but that it was inadequate. In an August 2016 rating decision granting service connection for right ear hearing loss, the RO conceded that the Veteran had noise exposure while in-service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires: (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. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic diseases, such as other organic disease of the nervous system, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. That presumption is rebuttable by probative evidence to the contrary. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Other organic diseases of the nervous system include sensorineural hearing loss. Fountain v. McDonald, 27 Vet. App. 258 (2016). Continuity of symptomatology may establish service connection if a claimant can demonstrate (1) that a condition was “noted” during service; (2) there is post-service evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). With respect to hearing loss, impaired hearing will be considered to be a disability under the laws administered by VA when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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. The United States Court of Appeals for Veterans Claims (Court) has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The auditory thresholds set forth in 38 C.F.R. § 3.385 establish when hearing loss is severe enough to be service connected. Hensley at 159. The requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a claimant’s period of active military service in order for service connection to be granted and § 3.385 does not prevent a claimant from establishing service connection on the basis of post-service evidence of hearing loss related to service when there were no audiometric scores reported at separation from service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The regulation does not necessarily preclude service connection for hearing loss that first met the regulation’s requirements after service. Hensley, 5 Vet. App. at 159. Thus, a claimant who seeks to establish service connection for a current hearing disability must show, as is required in a claim for service connection for any disability, that a current hearing disability is the result of an injury or disease incurred in service, the determination of which depends on a review of all the evidence of record including that pertinent to service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Hensley, 5 Vet. App. at 159-60. The Veteran’s service treatment records do not document any complaints, treatment, or diagnosis for hearing problems. His left ear hearing was found to be normal upon entrance to his active duty service. An audiological examination was performed in September 1967. However, because it is unclear whether such thresholds were recorded in using American Standards Association (ASA) units or International Standards Organization-American National Standards Institute (ISO-ANSI) units, the Board will consider the recorded metrics under both standards, relying on the unit measurements most favorable to the Veteran’s appeal. As it relates to VA examinations and VA records, audiological reports were routinely converted from ISO-ANSI results to ASA units until the end of 1975 because the regulatory standard for evaluating hearing loss was not changed to require ISO-ANSI units until September 9, 1975. In light of the above, and where necessary to facilitate data comparison for VA purposes in the decision below, including under 38 C.F.R. § 3.385, audiometric data originally recorded using ASA standards will be converted to ISO-ANSI standard by adding between 5 and 15 decibels to the recorded data. The September 1967 audiological evaluation of the Veteran’s left ear, puretone thresholds, in decibels, were as follows (with conversion shown in parentheses): HERTZ 500 1000 2000 3000 4000 LEFT 0 (15) 0 (10) 0 (10) 0 (10) 0 (5) In his 1971 separation examination, an audiological hearing test was not performed, but a whisper test indicated the Veteran’s left ear hearing was normal. He did not report any complaints or symptomology associated with his ears or hearing and no such issues were found on his 1971 separation report of medical examination. In July 1973, an authorized audiological evaluation of the Veteran’s left ear, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 25 10 0 15 15 In January 2015, a VA examination regarding the Veteran’s hearing loss was conducted. On the authorized audiological evaluation of the Veteran’s left ear, puretone thresholds, in decibels, were as follows:   HERTZ 500 1000 2000 3000 4000 LEFT 60 55 65 65 70 Speech discrimination score using the Maryland CNC word list in the left ear was 88 percent. The examiner diagnosed the Veteran with sensorineural hearing loss of his left ear. The examiner opined that the Veteran’s left ear hearing loss was less likely than not caused by or the result of the Veteran’s noise exposure in-service. The examiner stated that though it was reasonable to assume the Veteran was exposed to significant hazardous noise exposure while in-server, his previous audiological examinations indicated that the Veteran did not have a significant hearing threshold change (worsening) beyond normal variability/expected progression. The examiner noted the Veteran’s hearing threshold levels were within normal limits in both ears at discharge examination. In a July 2016 VA addendum opinion, the January 2015 VA examiner stated that the shift noted in the Veteran’s left ear hearing loss from the 1967 entrance examination at 500 Hz was not expected to be impacted by noise exposure. The examiner opined that the fluctuation at the 500 Hz represented transient conductive hearing loss due to non-noise exposure factors, such as a cold. The examiner opined that the Veteran’s left ear hearing loss was less likely than not caused by or the result of noise exposure during military service. In March 2017, a VA examination of the Veteran’s left ear hearing loss found that on the authorized audiological evaluation, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 55 65 70 70 80 Speech discrimination score using the Maryland CNC word list in the left ear was 50 percent. The examiner stated that the Veteran’s left ear hearing loss was at least as likely than not caused by or a result of an event in military service. The examiner stated that the Veteran’s had a history of noise exposure which included jet engine noise and weapon fire. A subsequent April 2017 VA examination addendum opinion from the March 2017 examiner stated that she had reviewed the conflicting medical evidence in the Veteran’s file. The examiner stated that there was no record of knowing when the Veteran’s left ear started revealing threshold drops. She noted that noise induced hearing loss can take a long time to be noticeable. The examiner stated that the Veteran’s hearing loss, in general, was somewhat symmetrical and that based on that fact there was reason to suspect that the military contributed to his left ear hearing loss. She indicated that if asymmetry in the hearing loss had been present, there might be a different opinion. As stated above, in July 2017 the Veteran and his wife testified before the undersigned Veterans’ Law Judge. He testified that he began noticing his hearing loss in 2009 and was diagnosed with hearing loss in 2009. He reported that his noise exposure in-service was the same for both ears and that he did not have civilian noise exposure other than training with his police weapon, for which he was issued hearing protection. Based on a careful review of the subjective and clinical evidence, and resolving all reasonable doubt in favor of the Veteran, the Board finds that the evidence is at least in equipoise that his currently diagnosed left ear sensorineural hearing loss is etiologically related to his military noise exposure. The Board notes that the Veteran was granted service connection for right ear hearing loss. The January 2015 VA addendum relied on the finding that the Veteran’s right ear decibel levels had a significant threshold shift from enlistment to the 1973 audiology examination to establish that it was at least as likely as not that his right ear hearing loss was caused by or the result of military noise exposure. Nevertheless, the VA examiner found that the same noise exposure that was found adequate to cause the Veteran’s right ear hearing loss was not found to be sufficient to result in his left ear hearing loss due to the Veteran’s hearing shift in the left ear occurring at the 500 Hz level. In determining that the Veteran did not undergo a significant threshold shift in his left ear during active duty service, the VA examiner found no basis for concluding his left ear hearing loss was related to his military noise exposure. Nonetheless, the VA examiner did not offer another explanation for the Veteran’s left ear hearing loss, only noting that the Veteran had reported civilian noise exposure, but wore hearing protection. The Board finds that the Veteran’s credible hearing testimony denied any post-service occupational or recreational noise exposure. Furthermore, the Board notes that the January 2015 VA examination did not indicated that any adjustment for ISO conversion and any impact that the conversion would have on the opinion. On that basis, the Board finds that the January 2015 VA examiner’s opinion is inadequate. The March 2017 VA examiner and her subsequent April 2017 addendum opined that the Veteran’s left ear hearing loss was more likely than not related to his in-service noise exposure and also reported that the symmetrical nature of his bilateral hearing loss indicated that his in-service noise exposure was responsible for both his right ear and left ear hearing loss. Based on these findings, the Board finds that by resolving all reasonable doubt in favor of the Veteran, service connection for left ear hearing loss is warranted. Considering the lack of any competent and credible evidence that shows that the Veteran had significant post-service noise exposure, the objective findings that establish he has hearing loss bilaterally, and the finding that his military noise exposure was sufficient to cause acoustic trauma in his right ear resulting in hearing loss, the Board concludes that resolving all reasonable doubt in favor of the Veteran, service connection for left ear hearing loss is warranted. In summary, the Board finds that the evidence is at least in equipoise that the Veteran’s diagnosed left ear hearing loss is etiologically related to his military noise exposure. Accordingly, the Veteran’s service connection claim must be granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND In his July 2017 hearing, the Veteran testified that his vertigo had onset at the same time as his hearing loss diagnosis in 2009. The Veteran also stated that he believed his vertigo was secondary to his bilateral hearing loss. As decided above, the Board has granted service connection for the Veteran’s left ear. Thus, the Veteran is now service connected for bilateral hearing loss. The Board notes that the Veteran has not been afforded a VA examination to determine the etiology of his vertigo in regard to his service connected bilateral hearing loss. After review of the claims file, the Board finds that there is sufficient evidence to warrant a VA examination for the Veteran’s claim for service connection for vertigo. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, remand is warranted in order to schedule the Veteran for an appropriate VA examination in accordance with McClendon. The matter is REMANDED for the following action: 1. Associate with the record any VA clinical documentation not already of record pertaining to treatment of the Veteran. 2. Thereafter, schedule the Veteran for a VA medical examination by a physician (M.D.) to determine the nature and etiology of any diagnosed vertigo. The claims file, including a copy of this Remand, must be made available to the examiner and the examiner should indicate in his/her report whether or not such was reviewed. All necessary tests and studies should be accomplished. The examiner should: (a.) Identify any diagnosed vertigo (b.) If there is a diagnosis of vertigo, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s vertigo had onset in service or within one year following separation from service, or was causally related to service; or was caused or aggravated (worsened beyond its natural progression) by the Veteran’s service connected bilateral hearing loss. The examiner must provide a complete rationale on which his/her opinion is based, and must include a discussion of the medical principles as applied to the medical evidence and facts used in establishing his or her opinion. The Veteran’s lay assertions as to onset and continuity and symptomatology, specifically his July 2017 hearing testimony, should be recorded and considered. The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a conclusion as it is to find against it. (Continued on the next page)   If the examiner finds that he/she cannot provide an opinion without resorting to speculation, he/she should explain the inability to provide an opinion. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Parrish, Associate Counsel