Citation Nr: 18150188 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 12-29 281 DATE: November 14, 2018 ORDER Entitlement to service connection for left ear hearing loss is granted. FINDING OF FACT The Veteran’s left ear hearing loss was incurred in or caused by military service. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for left ear hearing loss have been met. 38 U.S.C. §§ 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1974 to November 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned at a hearing in June 2014. The claim was previously remanded for an additional medical examination by the Board’s December 2014 decision. Entitlement to service connection for left ear hearing loss Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. The evidence must show (1) the existence of a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). For the purposes of applying the laws administered by VA, hearing loss will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hz is 40 decibels or greater; the auditory thresholds for at least three of these 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. When no preexisting condition is noted upon examination for entry into service, a veteran is presumed to have been sound upon entry, and the burden then shifts to VA to rebut the presumption of soundness. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 C.F.R. § 3.304. To rebut the presumption of soundness under 38 U.S.C. § 1111, there must be clear and unmistakable evidence that (1) a Veteran's disability existed prior to service, and (2) that the preexisting disability was not aggravated during service. Id. When the presumption of soundness is not rebutted, the claim must be treated as a direct service connection claim. Hearing impairments that do not meet VA's regulatory definition of hearing loss are not defects, infirmities, or disorders; thus, findings of a hearing impairment not equating to hearing loss do not negate the presumption of soundness. See McKinney v. McDonald, 28 Vet. App. 15, 28-29 (2016) Certain chronic diseases listed in 38 C.F.R. § 3.309(a) will be service connected on a presumptive basis if they manifested to a compensable degree within one year after separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Hearing loss constitutes an organic diseases of the nervous system and thus falls within 38 C.F.R. § 3.309(a). Moreover, if these chronic diseases are noted during service, continuity of symptomatology can show chronicity and subsequent manifestations of the same disease is presumed to be service connected. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was “noted” during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-99 (1997) (overruled on other grounds Walker, supra). Here, the Veteran claims service connection for a left ear hearing disability. Initially, the Board notes that prior to entry onto active service, audiometric testing was performed. This testing from November 1973 reflected pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 4000 LEFT 25 25 15 20 Speech recognition ability was not tested. No left ear hearing disability, under 38 C.F.R. § 3.385, is noted and the presumption of soundness attached. See McKinney, supra. No evidence to rebut the presumption of soundness is of record. Audiometric testing from VA examinations of December 2011 and February 2015 confirm a current left ear hearing loss for VA purposes. The Veteran served in the Air Force as an airplane mechanic. His exposure to jet engine noise and acoustic trauma is conceded. The remaining issue is whether there is a nexus between the current left ear hearing disability and the Veteran’s service. Three medical opinions, all indicating the current hearing loss is less likely than not causally related to the Veteran’s service, are of record. However, none of the opinions are adequate to determine this issue. The December 2011 VA examiner’s opinion, as discussed in the Boards December 2014 decision, was not supported by sufficient rationale. A February 2015 VA examiner’s opinion states that the Veteran’s hearing did not change during service and the Veteran was not exposed to acoustic trauma. As acoustic trauma is conceded and changes in the Veteran’s hearing are noted in service (discussed below), the opinion is inadequate as it is based on factual errors. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (indicating an opinion based on an inaccurate factual history is of limited probative value). The Board obtained an additional May 2018 opinion from a VA medical expert. This examiner discussed a May 1977 audiogram (shown below) which documented auditory thresholds at three pertinent frequencies were 26 decibels or greater. While the audiometric testing indicates hearing loss for VA purposes, the examiner inaccurately characterized them as showing “borderline normal hearing.” Further, the examiner noted his concurrence with a December 1977 VA examiner’s finding that the Veteran exhibited a pre-existing hearing loss on enlistment. Per the holding in McKinney, the Veteran did not exhibit a pre-existing left ear hearing disability. The May 2018 expert opinion is factually inaccurate and therefore inadequate to determine the claim. See Reonal, supra. No probative medical evidence is of record to determine the question of nexus. As hearing loss is a chronic condition under 38 C.F.R. § 3.309, the doctrine of continuity of symptomatology is applicable in this case. See Walker, supra. During the Veteran’s active service, a May 1977 audiogram, conducted on consultation with a civilian specialist, Dr. J, indicated pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 4000 LEFT 30 30 25 30 This audiometric test, recording thresholds above 26 at three different frequencies, shows hearing loss for VA purposes. See 38 C.F.R. § 3.385. Also of record is a June 1977 referral from an Air Force physician which notes the May 1977 test results and seeks additional evaluation of the Veteran’s left ear hearing acuity. Ultimately, the Veteran left service prior to having additional testing performed. The Board notes multiple in-service audiograms, both before and after the May 1977 audiogram, failed to document hearing loss for VA purposes. However, resolving all doubt in favor of the Veteran, the Board finds he experienced a left ear hearing disability, per VA regulations, in May 1977. Left ear hearing loss is noted in service. Id. The Veteran is not qualified to provide a medical opinion as to the etiology of his hearing loss. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, difficulty hearing is capable of lay observation and he is competent to report his experiences and perceptions of this condition. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran credibly testified that he noticed difficulty hearing his wife speak in September 1976. He reported this difficulty during an examination of May 1977. In November 1976, an Air Force annual hearing conservation test identified a “significant hearing threshold shift.” After this test, the Veteran “entered into a detailed medical followup procedure” where his exposure to noise was curtailed and his hearing was monitored over a five-month period. In the following months, the service treatment records include occupational health exams for hazardous noise and audiograms. While the audiograms do not reflect left ear hearing loss for VA purposes, they document the continued threshold shift initially observed in November 1976. Post service, as described in a December 2010 written statement, the Veteran had continuous difficulty hearing the television and participating in conversation. He frequently asked people to repeat themselves. He recounted shortly after discharge, he received a VA examination where he was told he had excessive wax build up in his ears. He was instructed to use a wax remover. A December 1977 VA disability examination confirms his account. He used the wax remover for several years hoping his hearing would improve. He observed no improvement. In 1984 while working in a meat packing plant, his employer administered hearing tests. The April 1984 audiometric testing shows pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 30 25 25 30 30 Once again, hearing loss for VA purposes is shown in April 1984. Id. As noted above, additional VA audiograms in December 2011 and February 2015 confirm continued hearing loss in the left ear. The Board notes an August 1985 audiogram, conducted in the course of evaluating a claim for an increased hearing disability of the right ear, did not demonstrate a left ear hearing loss. The Veteran's statements as to his difficulty hearing are consistent and competent. His reports of hearing problems in service are supported by the Air Force’s efforts to monitor his hearing. His reports of having difficulty hearing other speak after service are consistent with his report of difficulty hearing his wife speak, during his active service. The Board finds the lay statements are credible and probative. They provide evidence of continuity of symptomatology of hearing loss since service. Therefore, by resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for left ear hearing loss is warranted. See 38 C.F.R. §§ 3.102, 3.303. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jeanne Celtnieks, Associate Counsel