Citation Nr: 20021614 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 17-51 322 DATE: March 26, 2020 ORDER Entitlement to service connection for right ear hearing loss is granted. REMANDED Entitlement to a compensable rating for service-connected bilateral hearing loss (previously left ear hearing loss) is remanded. FINDING OF FACT The Veteran’s right ear hearing loss is etiologically related to his in-service noise exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for right ear hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 1112, 5103, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1968 through September 1969. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to service connection for right ear hearing loss is granted. Service connection will generally be awarded when a Veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection on a direct basis, the evidence must show (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link or nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 252 (1999). In addition, certain chronic diseases, including sensorineural hearing loss (as an organic disease of the nervous system), may be presumed to have been incurred or aggravated during service if it becomes disabling to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 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. See Fountain v. McDonald, 27 Vet. App. 258 (2016). For VA compensation purposes, hearing loss is defined as a disability when the auditory puretone threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory puretone 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. The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The auditory thresholds set forth in § 3.385 establish when hearing loss is severe enough to constitute a disability. Hensley 5 Vet. App. at 159. The Veteran asserts that he has current right ear hearing loss and that it is the direct result of noise exposure during active service. VA examination reports dated in January 2017 reflect audiometric findings establishing a current hearing loss disability. See January 2017 C&P Examination. Specifically, the Veteran had a puretone threshold above 40 decibels at 4000 Hz in his right ear. Therefore, the Veteran was diagnosed to have hearing loss disability in his right ear, and the first element of service connection has been met. See 38 C.F.R. § 3.303, 3.385. The Veteran asserts that his hearing disability was incurred in service. Specifically, he stated that he worked as a truck driver in the infantry and he was exposed to various noises including the noise of diesels, firing of tanks, the noise of gunfire, and the noise of explosions at close distances. See January 2020 Board Hearing Transcript. He testified that while he was given hearing protection, he could not wear it because the nature of his job as a truck driver required him to listen for directions on where to go. See id. In-service noise exposure is established based on the Veteran’s credible statements and the circumstances of his service. 38 C.F.R. § 3.303(a) (the places, types, and circumstances of service must be considered in determining entitlement to service connection). Therefore, the second element of service connection has been met. Thus, the crux of this case lies on whether there is a nexus between the Veteran’s right hearing loss disability and his injury incurred in service. The January 2017 VA examiner concluded that the Veteran’s left ear hearing loss was related to noise exposure in active service, but that his right ear hearing loss was not because a comparison of separation audiological evaluation with the enlistment audiological evaluation indicates that there was a significant threshold shift (greater than 10 decibels) at 4 Hz in the left ear and no significant threshold shift noted in the right ear. The Board rejects the January 2017 VA examiner’s opinion for the following reasons. Formerly, the results of audiometric testing (i.e. puretone thresholds at various frequencies) during active service dated after October 31, 1967 were assumed to have been provided in units of measurement established by the International Standards Organization (ISO)-American National Standards Institute (ANSI). Audiometric data prior to October 31, 1967 was assumed to have been recorded in American Standards Association (ASA) units, and thus had to be converted to ISO-ANSI units to enable data comparison and to bring them in line with VA regulation pertaining to hearing loss, which is based on ISO-ANSI units. However, VA policy now is to consider audiometric data dated between January 1, 1967 and December 31, 1970 using either ISO-ANSI or ASA units, whichever is more favorable to the claimant, unless the audiogram clearly indicates which standard was used. In this case, the separation audiogram is dated in May 1969, and thus falls within this date range and does not specify which standard was used. Therefore, per VA policy, the Board must also consider the data using ASA standards, if that is more favorable to the Veteran. If the audiogram was recorded using ASA units, then additional decibels would have to be added at the relevant frequencies, which clearly would be more favorable to the Veteran as it would show a more substantial puretone threshold shift. Specifically, 15 decibels would be added at 500 Hertz, 10 decibels at 1000, 2000, and 3000 Hertz, and 5 decibels at 4000 Hertz. The January 2017 VA opinion turns largely on a finding that there was no significant threshold shift during service. However, if the separation audiogram is assumed to have been recorded using ASA units (as directed under current VA policy, since this is more favorable to the Veteran) and then converted to ISO-ANSI units as discussed in the preceding paragraph, there is a significant threshold shift (greater than 10 decibels) between the Veteran's entrance and separation audiograms at 500 Hertz, which would alter the examiner's conclusion that there was no clinically significant shift, as demonstrated by the reasoning applied for her opinion that the Veteran’s left ear hearing loss was related to his in-service noise exposure. Specifically, on entrance examination in April 1968 puretone thresholds for the right ear were -5 decibels at 500 Hertz; whereas, on separation examination in May 1969 puretone thresholds for the right ear were 15 decibels at 500 Hertz. Therefore, applying the January 2017 VA’s examiner’s rationale for providing a positive opinion concerning the relationship between the Veteran’s left ear hearing loss and his in-service noise exposure to his right ear hearing loss, the Board finds that his right ear hearing loss was incurred in active service. Accordingly, service connection for right ear hearing loss is warranted. REASONS FOR REMAND 2. Entitlement to a compensable rating for service-connected bilateral hearing loss (previously left ear hearing loss) is remanded. In light of the above award of service connection for right ear hearing loss, the Board finds that a new VA examination is warranted to assess the current severity of the Veteran’s now service-connected bilateral hearing loss. See 38 C.F.R. § 3.327(a) (providing that reexaminations will be requested whenever VA needs to determine the current severity of a disability). The matters are REMANDED for the following action: (Continued on the next page)   1. Obtain the Veteran’s updated VA medical treatment records 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his bilateral hearing loss. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Mohammad The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.