Citation Nr: 21001244 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 14-24 422A DATE: January 7, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT Resolving any reasonable doubt in his favor, the Veteran’s bilateral hearing loss is etiologically related to his service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 101, 1110, 1112, 1113, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 1965 to March 1968. He was awarded the Combat Infantryman Badge and the Purple Heart. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In March 2017, the Veteran testified before the undersigned at a hearing in St. Petersburg. A transcript of his testimony has been associated with the claims file. Previously, this matter was remanded for additional development by the Board in February 2018 and February 2020 decisions. This development having been completed, the matter now returns to the Board for readjudication. This matter has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.800(c). Service Connection Here, the Veteran contends that he is entitled to service contention for bilateral hearing loss, which had its onset during his military service and has continued since that time. More specifically, he has alleged that he would frequently lose hearing temporarily during combat and that he has experienced progressive hearing loss since that time. For instance, he has described “deafening” noise from artillery fire during the Battle of Bong Tang in Vietnam in 1966. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection for certain chronic diseases, to include a sensorineural hearing loss may be established on a presumptive basis if the disease was manifested to a compensable degree within one year following discharge from active duty. 38 C.F.R. §§ 3.307, 3.309(a). Additionally, for combat veterans, as defined under 38 U.S.C. § 1154(b), lay evidence alone can establish the in-service element of service connection, if consistent with the circumstances, conditions, or hardships of such service, even if there is no official record. 38 C.F.R. § 3.304(d). This is commonly referred to as the “combat presumption.” 38 U.S.C. § 1154(b) does not establish service connection for a combat veteran, but rather aids him in relaxing the adjudicative evidentiary requirements for determining what happened in service. Clyburn v. West, 12 Vet. App. 296, 303 (1999). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board will first address the first prong of the test for service connection, a current disability. The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The determination of whether a veteran has a service-connectable hearing loss is governed by 38 C.F.R. § 3.385, which states that a hearing loss will be considered to be a “disability” when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. The Veteran was first afforded a VA audiological examination in January 2013. Pure tone thresholds, in decibels, were as follows: Ear 1000 Hertz 2000 Hertz 3000 Hertz 4000 Hertz Right 35 50 55 60 Left 30 40 50 65 The average pure tone threshold at 1000, 2000, 3000, and 4000 Hertz was 50 in the right ear and 46 in the left ear. Speech recognition scores were 99 percent and 82 percent in the right and left ear, respectively. For VA purposes these pure tone levels constitute a current diagnosis of hearing loss during the period on appeal. 38 C.F.R. § 3.385. The second criterion of the test for service connection, in-service occurrence, has also been met. The Veteran has consistently reported exposure to artillery fire and loud noises through his combat service. The Veteran’s Form DD-214 confirms his military occupational status as an armor intelligence specialist, as well as his receipt of the Purple Heart and the Combat Infantryman Badge, indicating that he served in a combat capacity at one point. In this regard, the Veteran’s statements are wholly consistent with the circumstances, conditions, and hardships of his combat service. Given the consistency of his statements and his military records, the Veteran’s hearing loss is presumed to have been incurred in combat. The Board also notes that the Veteran’s service treatment records contain audiological testing data from the time of enlistment and his separation from service. At his March 1965 entrance examination, pure tone thresholds, in decibels, were as follows: Ear 500 Hertz 1000 Hertz 2000 Hertz 3000 Hertz 4000 Hertz Right -5 (10) -10 (0) -5 (5) -5 (5) -5 (0) Left -5 (10) -5 (5) -5 (5) -5 (5) -5 (0) As it relates to service department records, service department audiometric records were reported using standards set forth by the American Standards Association (ASA) prior to January 1, 1967. After December 31, 1970, however, military audiograms were recorded using International Standards Organization-American National Standards Institute (ISO-ANSI) units. As such, military audiograms dated before January 1967 must be converted from ASA to ISO-ANSI units prior to making findings related to a claimed hearing loss disability. Conversion to ISO units is accomplished by adding 15 decibels to the ASA units at 500 Hertz, 10 decibels to the ASA units at 1000 Hertz, 2000 Hertz, and 3000 Hertz, and 5 decibels to the ASA units at 4000 Hertz. The conversion is reflected in the parentheses above. An audiogram was also obtained pursuant to his separation examination in January 1968. Pure tone thresholds, in decibels, were as follows: Ear 500 Hertz 1000 Hertz 2000 Hertz 3000 Hertz 4000 Hertz Right 0 (15) 0 (10) 5 (15) X 0 (5) Left 0 (15) 5 (15) 10 (20) X 10 (15) The Board reiterates that it is assumed that service department audiometric tests prior to January 1, 1967, were likely in ASA units, while service department audiograms conducted after December 31, 1970, are assumed to have used the standards set by the ISO-ANSI. However, for service department audiograms conducted between January 1, 1967, and December 31, 1970, it is unclear whether the thresholds were recorded using ASA or ISO-ANSI units. As such, data from the January 1968 separation audiogram has been considered under both standards, as set forth above, and the conversion to ISO-ANSI units is reflected in the parentheses. Because the unit measurements under the ISO-ANSI standards are more favorable to the Veteran’s appeal, however, the Board will rely on these measurements. Ultimately, the separation audiogram data reflects worsening hearing acuity in both ears when compared to his entrance audiogram data. The Board now turns to the third element of the service connection test, a causal nexus. The Veteran’s post-service VA treatment records reflect that in September 2012, he reported to a VA audiologist that he had experienced hearing loss since service. See September 2012 VA Audiology Consult. The Board notes that this statement is considered to be exceptionally trustworthy as it was made for the purpose of medical diagnosis and prior to the filing of his claim. See White v. Illinois, 502 U.S. 346, 356 (1992). The Board also notes that multiple VA medical opinions have been obtained with respect to the etiology of his bilateral hearing loss. Nonetheless, the Board is not required to accept the opinion of any examiner. Hayes v. Brown, 5 Vet. App. 60 (1993). To that end, the various VA medical opinions that have been procured are inadequate for numerous reasons. First, the January 2013 VA examiner opined that the Veteran’s bilateral hearing loss was less likely as not related to his military service because his hearing was normal on his entrance examination, and normal on his separation examination. This opinion is inadequate, as the VA examiner’s opinion is entirely premised on a lack of contemporaneous service treatment records regarding hearing loss. Moreover, the January 2013 VA examiner failed to consider various relevant evidence of record, such as the Veteran’s DD Form 214, which indicated that he served in combat, and did not convert the units in the March 1965 and March 1968 audiograms from ASA to ISO-ANSI units. VA afforded the Veteran with a new medical examination in November 2018. The November 2018 VA examiner opined that the Veteran’s hearing loss was not related to service, but also that she could not provide an opinion without resorting to mere speculation because service treatment records were unavailable for the examiner to review. Such an opinion is internally inconsistent and, once more, the examiner did not consider relevant evidence of record in reaching these conclusions. As such, the November 2018 VA examiner’s opinion is entitled to little probative weight. Afterwards, the RO obtained an addendum VA medical opinion in September 2019. The September 2019 VA examiner opined that the Veteran’s hearing loss was less likely as not related to his service because he was released from duty with normal hearing and without a statistically significant shift in thresholds when comparing entrance to exit audiograms. In making this conclusion, the examiner cited to a 2005 study by the Institute of Medicine entitled “Noise and Military Service: Implications for Hearing Loss and Tinnitus,” which the examiner said indicated that delayed onset hearing loss after the cessation of noise exposure was unlikely. The Board notes that this study acknowledged that there was little evidence to address the question of delayed onset noise-induced hearing loss. To that end, the September 2019 VA examiner appears to have unjustifiably relied on the findings of this 2005 study, which also indicated that “definitive studies to address this issue have not been performed.” The September 2019 VA examiner also failed to address the Veteran’s combat service and his lay statement indicating that his hearing loss had been progressively occurring since his time on active duty. Last, the September 2019 VA examiner did not indicate whether she had converted the units from the March 1965 and January 1968 audiograms from ASA units to ISO-ANSI units. As such, the September 2019 VA examiner’s opinion regarding the etiology of the Veteran’s hearing loss is also inadequate. Last, the Veteran was afforded a third VA examination in March 2020. The March 2020 VA examiner indicated that ASA to ISO-ANSI conversions were performed and opined that the Veteran’s enlistment audiogram revealed normal hearing bilaterally from 500 to 4000 Hertz, with mild hearing loss at 6000 Hertz in the left ear, while his separation examination reflected normal hearing bilaterally from 500 to 4000 Hertz. The March 2020 VA examiner ultimately opined that his hearing loss was less likely as not related to his military service. In making this conclusion, she also cited to the same 2005 study on military noise exposure that the September 2019 VA examiner had cited. Although the March 2020 VA examiner stated that there was “no reasonable basis for delayed-onset hearing loss,” she also stated in her opinion that the necessary longitudinal studies on delayed-onset hearing loss had not been done. The March 2020 VA examiner acknowledged the Veteran’s reports of hazardous noise exposure during service, but indicated that his hearing loss configuration was not typical for noise-induced hearing loss. Although the March 2020 VA examiner’s opinion contains more thorough reasoning than the previous opinions of record, the Board nonetheless finds that the opinion is not persuasive. To that end, the March 2020 VA examiner did not address the Veteran’s contentions that his hearing loss had progressively worsened since his service or that he was temporarily unable to hear during service. Moreover, the examiner’s opinion failed to address his contentions that prior auditory damage could aggravate or accelerate hearing loss over time. See, e.g., November 2020 Informal Hearing Presentation (citing to an article published in the Journal of Neuroscience in May 2015 showing that auditory damage can accelerate hearing loss in aging in some cases); January 2020 Informal Hearing Presentation (same). As such, the Board finds that the probative value of the March 2020 VA examiner’s opinion is diminished. Additionally, the Board notes that the March 2020 VA examiner opined that the Veteran’s current hearing loss preexisted his military service because his entrance audiogram reflected a pure tone threshold of 35 decibels at 6000 Hertz in his left ear. As set forth above, however, this is not considered hearing loss for VA compensation purposes pursuant to the pertinent regulations. This aspect of the March 2020 VA examiner’s opinion is thus inadequate. See Reonal v. Brown, 5 Vet. App. 458 (1993) (opinions based on inaccurate factual premises are entitled to no probative weight). Ultimately, although there are no probative opinions addressing the etiology of the Veteran’s hearing loss, the Board finds that the Veteran’s lay statements regarding the continuity and duration of his hearing loss symptoms to be sufficient to establish entitlement to service connection in this instance. Furthermore, the Board notes that medical evidence is not categorically required to satisfy the nexus element of the service connection framework. See Davidson v. Shinseki, 581 F.3d 1212 (Fed. Cir. 2009). The Board also observes that it is prohibited from developing additional evidence for the purpose of obtaining evidence against a claimant’s case. See Mariano v. Principi, 17 Vet. App. 305 (2003). (Continued on the next page)   Having considered the foregoing, and after resolving all reasonable doubt in the Veteran’s favor, the Board finds that hearing loss had its onset during service. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Rademacher, Associate 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.