Citation Nr: 21001518 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 09-49 671 DATE: January 8, 2021 ORDER Service connection for right ear hearing loss is granted. REMANDED 1. The claim of entitlement to an effective date earlier than August 1, 2011, for the assignment of a 100 percent rating for bilateral hearing loss is remanded. 2. The claim of entitlement to an increased rating for bilateral hearing loss is remanded. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran’s right ear hearing loss was incurred in or caused by service. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for right ear hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1970 to October 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from July 2009 and December 2012 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in April 2018, at which time the Board denied service connection for right ear hearing loss and denied an earlier effective date for the assignment of a 100 percent rating for hearing loss. Thereafter, the Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court). In a March 2019 Joint Motion for Remand (Joint Motion), the parties moved the Court to vacate the portions of the Board’s April 2018 decision denying service connection for right ear hearing loss and denying an earlier effective date for the assignment of a 100 percent rating for hearing loss. In a March 2019 order, the Court granted the Joint Motion and remanded the claims for action consistent with the terms of the Joint Motion. In November 2019, the Board remanded the claims for further development and adjudication. The requested development was completed, and the case has been returned to the Board for further appellate action. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and sensorineural hearing loss becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309. For VA compensation purposes, impaired hearing will be considered 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; see Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007) (upholding the validity of 38 C.F.R. § 3.385 to define hearing loss disability for VA purposes). 1. Entitlement to service connection for right ear hearing loss The Veteran asserts that his right ear hearing loss was caused by acoustic trauma from operating and performing maintenance on trucks throughout his 23 years of service. Service personnel records indicate that the Veteran worked as a recovery vehicle operator, a light wheel vehicle mechanic, and a unit maintenance technician, which carry a high probability of hazardous noise exposure. Upon review of the record, the Board finds that it is at least as likely as not that the Veteran’s right ear hearing loss was incurred in or caused by service. The earliest legible audiogram in the Veteran’s service treatment records is dated November 1981 and showed pure tone thresholds in the right ear were 15, 10, 15, 15, and 20 decibels, at 500, 1000, 2000, 3000, and 4000 Hertz, respectively. Upon the Veteran’s retirement in 1993, he reported a history of hearing loss, and on a June 1993 report of medical examination, the examiner noted “hearing loss from working around vehicles [and] . . . maintenance of building[s].” A June 1993 audiogram showed pure tone thresholds in the right ear were 15, 0, 10, 20, and 25 decibels, at 500, 1000, 2000, 3000, and 4000 Hertz, respectively. Thereafter, service connection was granted for left ear hearing loss, but denied for right ear hearing loss because audiometric testing did not show right ear hearing loss meeting the definition of a disability for VA compensation purposes. See 38 C.F.R. § 3.385. Post-service treatment records show the Veteran reported decreased hearing bilaterally in December 2004 and December 2005; however, audiometric testing did not show a right ear hearing loss disability until July 2008. In July 2009, a VA examiner who evaluated the Veteran in February 2009 opined that the Veteran’s right ear hearing loss was not caused by in-service noise exposure, as hearing tests were normal in the right upon his discharge from active duty. However, the Board assigns little probative value to this opinion because the examiner relied solely on the fact that a right ear hearing loss disability was not shown during service. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993). Treatment records show that in 2011, the Veteran began to experience sudden severe hearing loss bilaterally. In June 2017, another VA audiologist reviewed the evidence of record and opined that it is less likely than not that the Veteran’s right ear hearing loss disability was incurred in or caused by service. The examiner explained that a prolonged delay in the onset of noise-induced hearing loss was unlikely, and there is insufficient scientific basis to conclude that permanent hearing loss attributable to noise exposure will develop long after such exposure. The examiner further noted that the threshold shift that occurred in the Veteran’s right ear during service was not significant or greater than normal measurement variability. The Veteran underwent another VA examination in October 2020, and the examiner opined that it was at least as likely as not that the Veteran’s right ear hearing loss was caused by or the result of service. In support of this, the examiner explained that there was a standard threshold shift in both ears upon the Veteran’s discharge from active duty, which is indicative of possible auditory damage from his conceded in-service noise exposure. Thereafter, an audiogram performed in July 2008 revealed mild to profound hearing loss bilaterally, followed by a sudden profound sensorineural hearing loss bilaterally around 2011. The examiner noted that there is no indication in the record regarding the etiology of the sudden hearing loss, but causes may include a viral infection of the hearing nerve, autoimmune disease, or vascular causes. Nevertheless, the examiner concluded that the Veteran had two assaults on his inner ear, the first being the high frequency permanent threshold shift bilaterally detected at separation, which was related to military noise exposure, and the second being the idiopathic sudden hearing loss occurring about 17 years later. Based on the foregoing, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s right ear hearing loss disability was caused by in-service noise exposure. After resolving reasonable doubt in favor of the Veteran, service connection for right ear hearing loss is granted. REASONS FOR REMAND 1. Entitlement to an effective date earlier than August 1, 2011, for the assignment of a 100 percent rating for bilateral hearing loss is remanded. Although service connection was previously only in effect for left ear hearing loss, the Veteran has been in receipt of a 100 percent rating for bilateral hearing loss since August 1, 2011. The assignment of the 100 percent rating was based on the paired organs provision of 38 C.F.R. § 3.383(a)(3), which states that if there is hearing impairment in one ear compensable to a degree of 10 percent or more as a result of service-connected disability and hearing impairment meeting the provisions § 3.385 in the other ear as a result of nonservice-connected disability, then compensation is payable for the combination of the service-connected and nonservice-connected hearing loss as if both disabilities were service-connected. 38 C.F.R. § 3.383(a)(3). Now that service connection has been granted for right ear hearing loss, the Veteran’s left and right ear hearing loss should be evaluated together from the date of the award of service connection for right ear hearing loss. See 38 C.F.R. § 4.85, Diagnostic Code 6100 (2020). However, the Board cannot assign an initial rating or effective date in the first instance; rather, the Agency of Original Jurisdiction (AOJ) must first implement the award of service connection for right ear hearing loss and assign the appropriate rating and effective date. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997); Sprinkle v. Shinseki, 733 F.3d 1180, 118384 (Fed. Cir. 2013) (noting that claims in VA benefits cases are initially developed and adjudicated by the RO and reviewed on appeal by the Board to ensure that claimants receive the benefit of this two-tiered review within the agency). As the initial rating and effective date assigned following the award of service connection for right ear hearing loss could impact the Veteran’s entitlement to an earlier effective date for the assignment of a 100 percent rating for bilateral hearing loss, the earlier effective date claim must be remanded for contemporaneous adjudication. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issues has been rendered). 2. Entitlement to an increased rating for bilateral hearing loss is remanded. As an initial matter, the Board notes that a claim for an increased rating for left ear hearing loss was remanded in November 2019 for issuance of a statement of the case (SOC), and the Board instructed the AOJ to return the claim to the Board if the Veteran perfects a timely substantive appeal. See 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). In October 2020, the AOJ issued a supplemental statement of the case (SSOC), rather than an SOC. The notification letter accompanying the SSOC advised the Veteran that “[b]efore returning your appeal to the Board, we are giving you a period of time to respond with additional comments or evidence. Please note that a response at this time is optional and is not required to continue your appeal.” Although the Veteran did not perfect an appeal, the AOJ treated the claim for an increased rating for bilateral hearing loss as if it was on appeal. Therefore, the Board will accept jurisdiction over the claim. See Percy v. Shinseki, 23 Vet. App. 37 (2009) (“[i]f VA treats an appeal as if it is timely filed, a veteran is entitled to expect that VA means what it says”). Because the initial rating and effective date assigned following the award of service connection for right ear hearing loss could impact the Veteran’s entitlement to a higher rating for bilateral hearing loss, the claim is remanded for contemporaneous adjudication. See Harris, 1 Vet. App. at 183. The matters are REMANDED for the following action: After the assignment of an initial rating and effective date following the award of service connection for right ear hearing loss, readjudicate the claims for an increased rating for bilateral hearing loss and an earlier effective date for the assignment of a 100 percent rating for bilateral hearing loss. If the claims remain denied, issue a supplemental statement of the case. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Banister, 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.