Citation Nr: 18158146 Decision Date: 12/18/18 Archive Date: 12/14/18 DOCKET NO. 12-25 717 DATE: December 18, 2018 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT Bilateral hearing loss is related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a veteran (the Veteran) who had active duty service from July 1973 to July 1977, and from January 1980 to January 1982. This appeal comes before the Board of Veterans’ Appeals (Board) from a July 2018 Order of the United States Court of Appeals for Veterans’ Claims (Veterans Court). The appeal originated from a July 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In a decision dated in May 2017, the Board denied this claim. The Veteran appealed that decision to the Veterans Court. In a July 2018 Order, pursuant to a Joint Motion for Remand, the Veterans Court vacated the Board’s decision, and remanded this issue back to the Board for additional development consistent with the Joint Motion. Entitlement to service connection for bilateral hearing loss The Board acknowledges that the Veteran has a current bilateral hearing loss disability, as found on VA examination in February 2011 (Record 02/08/2011). The Board also acknowledges that the Veteran sustained acoustic trauma during service, as service connection has already been granted for tinnitus on this basis. The remaining question for resolution is whether incurrence or aggravation of current bilateral hearing loss is also related to acoustic trauma during service. Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz). Hensley v. Brown, 5 Vet. App. 155, 158 (1993). 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 is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 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. When examined, accepted, and enrolled for service in February 1973 (Record 07/07/2014 at 30), the Veteran was found to have mild bilateral hearing loss based on the following audiological readings: HERTZ 500 1000 2000 3000 4000 RIGHT 45 15 15 30 35 LEFT 30 15 20 30 35 The Veteran was assigned a physical profile value of H-2. The H stands for hearing and ears. This factor concerns auditory acuity and disease and defects of the ear. The number 2 indicates that an individual possesses some medical condition or physical defect that may require some activity limitations. See 9–3(c)(1) Army Regulation 40–501, Change 35; Hanson v. Derwinski, 1 Vet. App. 512 (1991); Odiorne v. Principi, 3 Vet. App. 456, 457 (1992). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Patrick v. Shinseki, 668 F.3d 1325, 1329 (Fed. Cir. 2011) (to rebut the presumption of soundness in the case of a wartime veteran, the evidence must clearly and unmistakably show not only that the disorder at issue pre-existed entry into service, but clear and unmistakably show that the disorder did not undergo aggravation in or as a result of service). In its May 2017 decision, the Board found that the presumption of soundness did not attach, as the Veteran was found by the service examiner to have hearing loss, and as the physical profile rating indicated a hearing defect. However, just prior to the Board’s decision, the Veterans Court issued a decision in a similar case. The Veterans Court held that, where hearing loss does not meet VA’s definition of a “disability” for hearing loss under § 3.385, the presumption of soundness under 38 U.S.C. § 1111 attaches. Further, the Veterans Court held that, in such cases, hearing loss does not constitute a “defect”; and that the term “defect” should be narrowly interpreted so that it does not encompass a level of hearing impairment that is not considered a “disability” under 38 C.F.R. § 3.385. See McKinney v. McDonald, 28 Vet. App. 15 (2016). This case was remanded to the Board in July 2018 (Record 07/03/2018) by the Veterans Court on the basis that a December 2015 VA medical opinion (Record 12/15/2015), relied upon by the Board, which found that there was pre-existing hearing loss which was not aggravated by service, did not address the distinction between the definition of a hearing loss disability and the finding of that examiner that the Veteran had pre-existing hearing loss. While the Board could certainly remand the claim to the RO to obtain a supplemental medical opinion, the Board finds that this is not necessary. Under the holding in McKinney, the presumption of soundness must attach at service entrance. Therefore, the Veteran did not have a hearing loss disability upon, examination, acceptance, and enrollment into active duty service. The Veteran served for two periods. During those periods, the following audiometry readings were noted: On August 6, 1974 (Record 07/07/2014 at 111), readings were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 25 25 30 35 LEFT 40 35 20 40 35 On August 15, 1974 (Record 07/07/2014 at 46), readings were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 50 50 45 45 45 LEFT 50 35 30 35 45 On July 15, 1976 (Record 07/07/2014 at 41), readings were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 40 40 45 45 LEFT 35 25 30 30 35 At the end of the Veteran’s first period of service, on July 14, 1977 (Record 07/07/2014 at 43), readings were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 40 40 45 55 LEFT 35 30 30 40 40 On May 21, 1978 (Record 07/07/2014 at 31), readings were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 30 25 35 40 LEFT 40 25 30 35 40 At examination, acceptance, and enrollment in the Veteran’s second period of service, on January 9, 1980 (Record 07/07/2014 at 33), readings were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 15 15 25 35 LEFT 20 15 10 25 35 At service separation on January 7, 1982 (Record 07/07/2014 at 37), readings were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 30 20 35 45 LEFT 25 15 10 30 35 While a hearing loss disability for VA purposes was not consistently shown during the Veteran’s service or, with respect to the left ear, at service separation in 1982, a hearing loss disability for VA purposes was shown on multiple examinations during service for each ear, and was demonstrated for the right ear in 1982. The Board finds that the normal findings at service entry, combined with the manifestation of a hearing loss disability during service, raises the evidence in favor of service incurrence of disabling hearing loss to the point of relative equipoise with the evidence against such service incurrence. With resolution of all reasonable doubt in favor of the claim, the Board concludes that service connection for bilateral hearing loss is warranted. As this represents the full benefit sought on appeal, there is no prejudice resulting from any error in VA’s duty to notify or assist. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Cramp