Citation Nr: 18159461 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 17-08 427 DATE: December 19, 2018 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT The evidence is at least in relative equipoise as to whether the Veteran’s bilateral hearing loss is related to his active service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1957 to June 1961. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2) (2012); 38 C.F.R. § 20.900(c) (2018). In November 2018, the Veteran requested a hearing via videoconference. However, in light of the grant of sole benefit sought on appeal, the Board will proceed to a decision on the claim without a hearing as no prejudice results. 38 C.F.R. § 20.704(e). Indeed, in light of the complete grant of the benefit herein sought on appeal, any duty to notify or duty to assist violation is deemed harmless. Service Connection Service connection generally requires (1) evidence of a current disability; (2) in service incurrence or aggravation of a disease or injury; and (3) a causal relationship (i.e., a nexus) between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 281 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2018). Continuity of symptomatology may also provide a basis for a grant of service connection for diseases defined as “chronic” by VA, which includes hearing loss. 38 C.F.R. § 3.303(b), 3.307(a)(3), 3.309(a); Fountain v. McDonald, 27 Vet. App. 258 (2015). Lay 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. Davidson v. Shinseki, 581 F.3d. 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Bilateral hearing loss For VA purposes, a minimum degree of hearing loss is a prerequisite for entitlement to service connection. McKinney v. McDonald, 28 Vet. App. 15 (2016). Hearing loss is a disability for VA purposes if an auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 or 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385; Hensley v. Brown, 5 Vet. App. 155 (1993). Prior to January 1, 1967, service departments used American Standards Association (ASA) standards, which must be converted to International Standards Organization – American National Standards Institute (ISO-ANSI) standards to meet the regulatory standard for evaluating hearing loss. The Board will consider the recorded metrics under both standards, relying on the unit measurements most favorable to the Veteran’s appeal. 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 standards by adding between 5 and 15 decibels to the recorded data as follows: Hertz 250 500 1000 2000 3000 4000 6000 8000 add 15 15 10 10 10 5 10 10 The Veteran claims that his bilateral hearing loss is due to his active service. He noted that his work specialty was maintaining air conditioning and refrigeration units. He indicated that he was often in confined spaces with extremely loud compressors and refrigeration machinery. Moreover, the Veteran indicated that he maintained refrigeration units on the flight line and was exposed to the loud noises produced by the fighter jets. The Veteran further reported that he had his ears cleaned two times a year in service because he had discomfort in his ears, which he attributed to dust from scraping evaporative coolers. The Veteran also noted that he was never provided hearing protection while in service. The Veteran’s DD 214 reflects that his military occupational specialty (MOS) was that of a refrigeration specialist. According to the service treatment records, the Veteran’s April 1957 entrance examination indicates that a whisper test was conducted, which demonstrated bilateral normal hearing (15/15). Subsequent STRs reflect that the Veteran had both ears cleaned in February 1960. The Veteran’s separation examination, conducted in June 1961, shows pure tone thresholds (ISO or ANSI units after conversion are in parentheses), in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 0 (10) 0 (10) 5 (15) -5 (0) LEFT 5 (20) 0 (10) 0 (10) 0 (10) -5 (0) The separation examination also indicates a whisper test was conducted, which demonstrated bilateral normal hearing (15/15). There are no pertinent post-service treatment records associated with the claims file until August 2015. The treatment records indicate that the Veteran had received routine hearing evaluations and hearing aid services. The Veteran received a VA medical examination in August 2015. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 40 35 45 60 LEFT 30 45 55 60 70 Speech audiometry revealed speech recognition ability of 100 percent for the right ear and 84 percent for the left ear. The VA audiologist noted that the Veteran did not use hearing protection during active service. The audiologist also indicated that, after separation from service, the Veteran was a barber and that he reported hunting activities with the use of hearing protection. The examination report reflects a diagnosis of sensorineural hearing loss in the frequency range of 500 to 4000 Hz in each ear. The audiologist indicated that there was no permanent positive threshold shift greater than normal measurement variability at any frequency between 500 and 6000 Hz for the Veteran’s right or left ear; that the Veteran passed a whisper voice test at his induction examination in April 1957; but that an audiometric test had not been completed at that time. The audiologist also indicated that the Veteran’s hearing at separation from service was within normal limits for each ear. The VA audiologist provided a positive nexus opinion for the Veteran’s tinnitus, noting that tinnitus was known to be a symptom associated with hearing loss and that the Veteran’s MOS had a high probability for hazardous noise exposure, but concluded that the Veteran’s hearing loss was less likely than not caused by, or a result of, an event in military service. The Veteran has a current hearing loss disability as demonstrated by his August 2015 VA audiology examination report. The Veteran exceeded the auditory threshold of 40 decibels in his right ear at 1000 Hz, 3000 Hz, and 4000 Hz and in his left ear at 1000 Hz, 2000 Hz, 3000 Hz, and 4000 Hz. These audiogram results show that the Veteran met the criteria for bilateral hearing loss pursuant to 38 C.F.R. § 3.385. Additionally, the evidence of record reflects in-service noise exposure as a result of the Veteran’s MOS as a refrigeration specialist. In this case, the Veteran indicated that he experienced noise exposure during service working with refrigeration machinery and compressors and sought treatment in service as a result of discomfort in his ears. His military records corroborate his assertions. After carefully reviewing and weighing the competent evidence of record, the Board is satisfied that the evidence is at least in approximate balance as to whether the Veteran’s current hearing loss is related to service. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The unfavorable evidence in this case consists of the lack of treatment records for hearing loss in the more than 40-year period since the Veteran’s separation from active service. In addition, the VA audiologist concluded that the Veteran’s hearing loss was not a result of military noise exposure. While the Board cannot ignore or disregard the VA audiologist’s medical conclusion [see Willis v. Derwinski, 1 Vet. App. 66 (1991)], it is free to assess medical evidence and is not compelled to accept a medical opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). In this case, the VA opinion is problematic for two reasons. First, the VA audiologist seemed to rely primarily on the results of the Veteran’s separation examination, noting that his hearing was within normal limits and the lack of a permanent positive threshold shift greater than normal measurement variability, but acknowledging that no audiometric testing had been completed at induction. Second, in providing the negative opinion, the audiologist did not provide any reason as to why the in-service acoustic trauma was not a source of, or at least a contributing factor to, the Veteran’s current hearing loss. The favorable evidence of record consists of the Veteran’s credible account of his exposure to some degree of acoustic trauma during service, which is supported by his military duties, and documentation in STRs confirming that he sought treatment in service for his ears. The Board also finds the positive nexus opinion for tinnitus based on in-service noise exposure probative because, as even the VA audiologist acknowledged, tinnitus is known to be a symptom associated with hearing loss. Moreover, post-service work and recreational history indicated little-to-no noise exposure without hearing protection. Based on the foregoing, the Board finds that the evidence is, at minimum, in equipoise as to whether the Veteran’s current hearing loss is related to his military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. The benefit-of-the-doubt will be conferred in the Veteran’s favor and his claim for service connection for bilateral hearing loss is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Hite, Associate Counsel