Citation Nr: 21002245 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 17-15 697 DATE: January 13, 2021 ORDER Service connection for left ear hearing loss is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. FINDING OF FACT The Veteran’s left ear hearing loss is related to service. CONCLUSION OF LAW The criteria for service connection for left ear hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from December 1974 to December 1976. These matters come before the Board of Veterans’ Appeals (Board) from a January 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2020, the Veteran provided testimony via a virtual hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. 1. Entitlement to service connection for left ear hearing loss is granted. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases are subject to a grant of service connection on a presumptive basis when present to a compensable degree within the first post-service year. 38 C.F.R. §§ 3.307, 3.309(a). Organic diseases of the nervous system, including sensorineural hearing loss, are considered by VA to be chronic diseases. 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). For claims for service connection for hearing loss or impairment, VA has specifically defined what is meant by a “disability” for the purposes of service connection. 38 C.F.R. § 3.385. “[I]mpaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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. The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Section 3.385 does not preclude service connection for a current hearing loss “disability” where hearing was within normal audiometric testing limits at separation from service. See Hensley, 5 Vet. App. at 159. When audiometric test results do not meet the regulatory requirements for establishing a “disability” at the time of the Veteran’s separation, the Veteran may nevertheless establish service connection for a current hearing disability by submitting competent evidence that the current disability is the result of disease or injury in service. Id. at 160. 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. In this case, the Veteran has a hearing loss disability in the left ear as the auditory thresholds for all of the frequencies are greater than 26 decibels. See VA examination January 2015. Additionally, the Veteran was exposed to high levels of noise, as recognized by the January 2015 VA examiner. The question remains as to whether the left ear hearing loss is related to service. Service treatment records include the October 1974 entrance examination and December 1976 separation examination. At entrance to service, testing showed as follows: HERTZ 500 1000 2000 3000 4000 LEFT 10 10 10 -- 10 At separation from service, testing showed as follows: HERTZ 500 1000 2000 3000 4000 LEFT 5 10 5 5 10 The January 2015 VA examiner stated that the Veteran’s military occupational specialty (MOS) was related to a tank and an assault amphibious vehicle, which carried a high probability of noise exposure. The Veteran reported that while in the tank the tube for ammunitions was on his right side, and as such, the noise was louder in the right ear than in the left. The examiner observed that the Veteran had no shift in pure tone audiometry in the left ear during service, and concluded that the left ear hearing loss was not related to service. Notably, the examiner based the opinion on the lack of a hearing loss disability or shift during service; however, as discussed above, this does not preclude service connection. As such, the opinion is inadequate for rating purposes. In a February 2017 addendum opinion, a VA examiner stated that the Veteran’s MOS had a high probability of hazardous noise exposure but that the Veteran’s left ear hearing loss was not related to service because no significant shifts in hearing were seen in the left ear during service. In support of the opinion, the examiner referred to an Institute of Medicine (IOM), National Academy of Sciences article which found no scientific basis for the existence of delayed-onset hearing loss. The IOM did not rule out that delayed onset might exist but stated that the requisite studies had not been done. Unfortunately, negative VA medical opinions that rely on the IOM study noted above have diminished probative value as the study contains qualifying or contradictory aspects. McCray v. Wilkie, 31 Vet. App. 243 (2019). In this case, the examiner based the opinion in part on the Veteran’s lack of a left ear hearing loss disability or threshold shift at separation from service, which does not serve as an adequate basis for denial of service connection. The examiner also based the opinion in part on the IOM report, which is not conclusive. The examiner did not address the Veteran’s exposure to hazardous noise during service as it related to the left ear or explain how exposure could cause hearing loss in the right ear but not the left. As such, the Board finds the opinion inadequate for rating purposes. In favor of the Veteran’s claim is a private opinion, dated in May 2017. The provider found that the Veteran’s left ear hearing loss was related to service. The provider did not support the opinion with rationale or indicate that she had reviewed the service treatment records or other evidence in the claims file. As such, the opinion is not adequate. In August 2020, the Veteran submitted another private opinion finding that his hearing loss was related to service. The provider stated that he reviewed the Veteran’s medical records and current audiological profile and found that it was more likely that the Veteran’s hearing loss was related to military experience, including use of tanks. During his September 2020 hearing before the Board, the Veteran testified that he was a tank commander during service. He spent eight hours a day working on the tank or in the field doing maneuvers, and three or four times a year he would participate in live firing exercises. He went to the field once a month for a week to 10 days at a time. He testified that he wore communication helmets and sometimes wore ear plugs in the field. He also stated that during service, he reported having hearing problems to superiors, but nothing was done. Based on the evidence, including the Veteran’s testimony and the August 2020 private opinion, the Board finds that the Veteran should be given the benefit of the doubt that his left ear hearing loss is related to hazardous noise exposure during service. The appeal is granted. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. The Veteran seeks service connection for an acquired psychiatric disorder, to include PTSD. During his hearing before the Board, the Veteran testified that he was treated for his mental health by Dr. M.A. in Wall Township and by J.H. at E.P.A. A report from J.H., dated in June 2014 is of record; however, other records from Dr. M.A. and J.H. have not been obtained for review. On remand, attempts must be made to obtain these private treatment records. Additionally, the Veteran testified that his PTSD stressor occurred in the summer of 1975. The Veteran saw a tank run over and kill a fellow Marine while performing desert maneuvers at Twentynine Palms combat center. On remand, attempts must be made to verify the Veteran’s reported stressor that occurred during the summer of 1975. The matters are REMANDED for the following actions: 1. Obtain VA treatment records, if any, and associate them with the claims file. 2. Ask the Veteran to complete a VA Form 21-4142 for each provider who has treated his mental health disorder, to include forms for Dr. M.A. and J.H. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 3. Attempt to corroborate the Veteran’s in-service stressor, including the reported accident in the summer of 1975 when a Marine was run over and killed by a tank during maneuvers at Twentynine Palms combat center. If more details are needed, contact the Veteran to request the information. Make as many requests as necessary to cover the period from May to September 1975. Attempts should also be made to obtain records from the Provost Marshall for this period. 4. Conduct any additional development necessary to determine whether the Veteran has an acquired psychiatric disorder related to service. 5. Then, readjudicate the Veteran’s claim on appeal. If the benefit sought on appeal remains denied, provide the Veteran and his representative a supplemental statement of the case and allow an appropriate period for response. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda G. Alderman 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.