Citation Nr: 21000197 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 15-06 859A DATE: January 4, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT The evidence is evenly balanced as to whether the Veteran's current bilateral hearing loss is related to service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1977 to May 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2018, the Veteran testified during a Board videoconference hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. The Board most recently remanded this claim in June 2020 for additional development. The development has been completed, and the claim has returned for appellate review. Service connection for bilateral hearing loss Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disability which is aggravated by a service-connected disability. 38 C.F.R. § 3.303(b). Establishing service connection on a secondary basis requires that his current condition was proximately caused or aggravated by a service-connected disability. For hearing loss, the laws and regulations do not require in-service complaints of or treatment for hearing loss in order to establish service connection, nor does normal hearing shown on audiometric testing at separation bar service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Instead, evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Board notes that the Court's holding in Hensley is consistent with 38 C.F.R. § 3.303(d), which provides that 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. See 38 C.F.R. § 3.303(d). Additionally, for purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz (Hz) is 40 decibels (db) or greater; when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 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 there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Service treatment records (STRs) showed that the Veteran had multiple audiograms as part of a hearing conservation program with the last audiogram dated January 1984. The audiograms did not show appreciable changes in hearing acuity thresholds. Service department records confirmed that the Veteran’s military occupational specialty (MOS) was as a motor vehicle operator and field artillery cannoneer. He also earned a Rifle Marksman Badge. In January 2002, a private audiologist, P.F., issued a letter in support of the claim. He evaluated the Veteran for hearing loss in September 2001. Otoscopic evaluation revealed a normal ear canal and tympanic membrane for the left ear. However, for the right ear, it revealed scar tissue on the tympanic membrane. Test results showed conductive hearing loss for the right ear. He commented that noise exposure could be a contributing factor for this hearing loss. In January 2002, the Veteran stated that he had military noise exposure from serving with an artillery unit but did not have medical treatment for hearing loss during service. In December 2010, the Veteran had a consultation with the VA audiology clinic. He reported a longstanding history of right sided hearing loss. He had a history of hearing aid use and right sided ear infections. Otoscopic examination showed clear ear canals and intact tympanic membranes in both ears. Audiogram test results showed mild sensorineural hearing loss in the left ear and profound to severe mixed hearing loss in the right ear. The newly associated audiogram from this consultation confirmed bilateral hearing loss for VA compensation purposes. 38 C.F.R. § 3.385. The audiologist assessed asymmetrical hearing loss. Due to the mixed hearing characterization, the audiologist recommended an ear, nose and throat (ENT) consultation. In April 2011, the Veteran had a VA audiology examination. The Veteran reported active service noise exposure from working in an artillery unit, driving large trucks and working as a small firearms instructor, all without hearing protection. He reported post service noise exposure from recreational firearm and lawnmower use with hearing protection. Audiogram and speech recognition scores confirmed VA defined hearing loss for the right ear but not the left ear. See id. Clinical otoscopic examination was unremarkable. The audiologist diagnosed bilateral sensorineural hearing loss with the right ear being profound to severe and the left ear being mild. The audiologist expressed a negative medical opinion. He stated that the military audiograms did not show a significant decrease in hearing levels during service. In April 2014, the Veteran had a comprehensive physical examination for service-connected Guillain Barre Syndrome (GBS) residuals. The VA neurologist expressed a negative medical opinion, with hearing loss included among several conditions, being related to service-connected GBS. He stated that there was no relationship between hearing loss and GBS. He explained that GBS was a peripheral neuromuscular disorder and did not affect the vestibulochochlear nerve or central nervous system structures involved in auditory processing. He also cited the lack of evidence showing hearing loss began when the Veteran initially presented with GBS symptoms in service. May 2017 VA audiology clinic records reflected that the Veteran had a hearing aid consultation. The clinician noted that the Veteran was long overdue for updated audiograms and hearing aids (HA). Otoscopy showed clear ear canals in both ears. Repairs were ordered for the hearing aids. June 2017 VA audiology clinic records noted the Veteran’s reports about a gradual decline in hearing. He reported experiencing numerous ear infections but that these symptoms were well managed. Otoscopy and tympanometry findings were normal. Audiogram confirmed profound to severe sensorineural hearing loss for the right ear and mild to moderate sensorineural hearing loss for the left ear. The audiologist commented that there were significant changes from the April 2011 audiogram. At the January 2018 hearing, the Veteran detailed his military noise exposures from working as a cannoneer and in motor transport. He did not wear hearing protection and remembered his hearing decreasing during service. He had been using hearing aids since 1998 or so. His wife also reported that the Veteran did not have hearing problems before being diagnosed with GBS. The Veteran stated that a neurologist had informed him there was a possibility GBS affected his hearing since it affects the nervous system. He agreed that his hearing started to worsen at the time of the military noise exposures. In June 2019, the Veteran had a VA-contract audiology examination. Audiogram and speech recognition scores confirmed VA defined hearing loss for both ears. 38 C.F.R. § 3.385. The audiologist diagnosed bilateral sensorineural hearing loss. She expressed a negative medical opinion. She cited normal audiograms from military service and reported that the Veteran’s hearing loss was not a typical noise induced hearing loss. In October 2020, the AOJ obtained a VA-contract audiology medical opinion regarding secondary service connection for GBS. The audiologist furnished a negative medical opinion for secondary causation. She cited the April 2014 VA medical opinion from the VA GBS examination. She specifically noted the April 2014 VA neurologist’s reports that GBS affected a different nerve than hearing loss, absence of hearing loss symptoms at the time of the 1986 GBS diagnosis, and multiple normal hearing examinations from service. She also furnished a negative medical opinion for secondary aggravation. In addition to the reasons noted above, she reported that the hearing loss from December 2010 and June 2019 was asymmetrical and less likely than not aggravated beyond its natural progression by GBS. For the following reasons, service connection for bilateral hearing loss is warranted. As an initial matter, the Board notes that the Veteran asserts secondary service connection to service-connected GBS. However, the evidence for service connection on a direct basis is at least evenly balanced, as detailed below, and further discussion of secondary service connection as an alternative theory of entitlement is unnecessary. The disputed issue is whether a relationship to service is demonstrated. The Veteran has provided competent and credible reports about military noise exposure. The December 2010 and June 2019 audiograms confirm current bilateral hearing loss for VA compensation purposes. McLain v. Nicholson, 21 Vet. App. 319 (2007); 38 C.F.R. § 3.385. The Veteran is competent to report military noise exposure and hearing difficulties. Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4 (Fed. Cir. 2007). He reports that he first noticed decreased hearing coincident to military noise exposures. (See Veteran’s statements from January 2002; April 2011 VA audiology examination; January 2018 hearing transcript). The Board finds the Veteran credible in his reports. Service department records corroborate his reports about military noise exposure. They confirm that he was enrolled in a hearing conservation program and had two MOSs in fields consistent with high degrees of occupational noise exposure. The medical evidence indicates that the Veteran had longstanding diagnosed hearing loss to at least 2001. For these reasons, the Veteran’s reports suggesting continuous symptoms since service for hearing loss have some probative value to support a relationship to service. The positive medical evidence concerning a relationship to service is the January 2002 private medical opinion from P.F. He suggests that the Veteran’s history of noise exposure is related to his then-right sided hearing loss. Reading the opinion as a whole and in the context of the evidence of record, it suggests a relationship to service for right ear hearing loss and even though it was not formally diagnosed at that time, left ear hearing loss. P.F.’s January 2002 medical opinion is therefore entitled to some probative weight. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner “did not explicitly lay out the examiner’s journey from the facts to a conclusion,” did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). The conflicting medical evidence for a relationship to in-service noise exposure consists of the April 2011 and June 2019 VA medical opinions. Both VA audiologists primarily relied upon the in-service audiogram reports in reaching their negative determinations. In this regard, the Board notes that STRs do not include an audiogram taken as part of a separation examination. The last available in-service audiogram is dated January 1984, which is over a year before separation. This time lapse weakens the VA audiologists’ rationale since the Veteran’s hearing acuity at separation is unknown. Although the June 2019 VA-contract audiologist added that the Veteran’s hearing loss was not typical noise induced hearing loss, she does not provide further explanation as to why such hearing loss is wholly unrelated to any noise exposure history. Then, neither audiologist directly addressed the Veteran’s reports about continuous hearing impairment symptoms beginning in service, and their failure to do so renders these medical opinions inadequate. Miller v. Wilkie, 32 Vet. App. 249, 262 (2020). Accordingly, the Board does not find the April 2011 or June 2019 VA medical opinion to be probative evidence weighing against the claim. The Board observes that the Veteran has a complex medical history with service-connected GBS and right ear hearing loss being of a much greater severity than left sided hearing loss. Nonetheless, the Veteran is competent to report about his hearing loss symptoms, and the service records corroborate his reports about in-service noise exposure. The medical evidence does not include persuasive evidence showing that in-service noise exposure is not a cause for current bilateral hearing loss. For the reasons set forth above, the Board finds that the evidence is evenly balanced as to whether the Veteran's current hearing loss disability is related to service. Thus, resolving reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for bilateral hearing loss. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. D. Simpson, Counsel 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.