Citation Nr: 21002921 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 19-23 839 DATE: January 19, 2021 ORDER Service connection for bilateral hearing loss is denied. REMANDED Entitlement to left knee injury is remanded. FINDING OF FACT The Veteran currently has bilateral sensorineural hearing loss that is a disability for VA purposes, but the weight of competent and credible evidence is that the hearing loss did not manifest in service and was not caused by any aspect of service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from January 1966 to December 1967 with service in Germany. These matters come before the Board of Veterans’ Appeals (Board) from a January 2019 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). INTRODUCTION There is a November 2018 Rating Decision in the file which granted service connection for bilateral hearing loss and tinnitus but denied the left knee injury. The decision was never effectuated, because there is no accompanying rating decision code sheet, and there was no notice of the decision sent to the Veteran in the file. The code sheet associated with the claim on appeal and another dated in May 2019 both indicate that hearing loss was not service-connected. Therefore, the Board finds that service connection for bilateral hearing loss is still an issue on appeal. Bilateral hearing loss The Veteran contends he is entitled to service connection for bilateral hearing loss based on exposure to high levels of noise during his active duty. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). A disability may be service connected on a secondary basis if it is proximately due to or the result of a service-connected disease or injury; or, if it is aggravated beyond its natural progress by a service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310(a), (b). Diseases of the nervous system, including sensorineural hearing loss, are listed among the “chronic diseases” under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified puretone and speech recognition criteria. Audiometric testing measures puretone threshold hearing levels (in decibels) over a range of frequencies (in Hertz). See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The determination of whether a Veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. For the 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, 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. In Hensley, the Court explained that the threshold for normal hearing is from zero to 20 decibels and that higher threshold levels indicate some degree of hearing loss. See 5 Vet. App. at 157. The Veteran has current bilateral sensorineural hearing loss that meets the criteria of 38 C.F.R. § 3.385 to be considered a disability for VA purposes. In November 2018, the Veteran underwent a VA audiometric examination. The examination report reflects the following puretone thresholds:       HERTZ      ANSI   500  1000  2000  3000  4000  Average RIGHT  10 15 20  70 70 44 LEFT  15 15 25 70 90  50   His speech discrimination scores using the Maryland CNC word list were 98% for both the right and left ears. Applying the law to the examination results the Veteran has a bilateral hearing disability by VA standards because he has auditory thresholds in the 3000 and 4000 Hertz range greater than 40 decibels for both ears. These results meet the first requirement for service connection, namely a current disability. In his September 2019 Statement in Support of Claim, the Veteran contended he is entitled to service connection for bilateral hearing loss based on continuous firing of artillery during the Vietnam conflict for 2 years of active duty and exposure to firing range noise in basic and advanced training. Although the Veteran did not serve in combat or in Vietnam, he reported that he was sent to Germany, spent months at a time on field training in a self-propelled Howitzer shooting 155mm projectiles and assigned to an M60 tank shooting 105mm projectiles, without hearing protection. The Veteran is competent to describe being exposed to loud noise, such as those caused by firearms and artillery. See Falzone v. Brown, 8 Vet. App. 398, 403 (1995). The Veteran’s lay statements are found to be credible because they have been consistent and are confirmed by the circumstances of his service. The Veteran’s DD 214 and military personnel records show that he served in an Armor battalion. His military specialty is noted as armor crewman. For these reasons, the in-service injury of acoustic trauma to both ears is established, which satisfies the second prong of service connection. Now turning to the third and final element, service treatment records (STRs) contain the following entrance and exit audiological examination results. In a February 2019 notice of disagreement, the Veteran described his noise exposure and noted that he was told by his discharge physical examiner that he had substantial hearing loss. However, this is not noted in the August 1967 examination report and in a concurrent medical history questionnaire, the Veteran denied any hearing loss. In an August 2019 substantive appeal, the Veteran called attention to and appeared to either quote or summarize a 2006 Institute of Medicine study for the finding that hearing protection and testing in the 1970s was less than adequate. However, the Veteran noted that the evidence in the study was not sufficient to reach conclusion regarding the number of service members who experienced noise induced hearing loss while in the military. The cited material from this study indicates that noise exposure can cause hearing loss but not that it can necessarily manifest later in life. A November 2018 VA contract audiologist noted a review of the claims file and opined: The Veteran’s hearing loss is at least as likely as not (50% probability or greater) caused by or a result of an event in military service. The examiner provided the following rationale in one section of the report: There is significant shift in hearing threshold beyond test variability from entrance to separation, indicative of possible auditory damage from conceded noise on active duty. Hazardous noise exposure on active duty is conceded. There is a current hearing loss present according to VA standards consistent with noise-induced hearing loss. Threshold and hazardous noise exposure provide a nexus to relate current hearing loss with military noise exposure. However, in the section of the report addressing tinnitus, the same examiner noted no significant shift in thresholds greater than the normal measurement variability and that there is no nexus of auditory damage due to military noise. Therefore, on its face, this examiner’s conclusions were internally inconsistent. Because of the inconsistency, the RO requested another review by the same contract examiner. The RO asked specifically whether there was a significant permanent shift in hearing thresholds greater than the normal measurement variability. In a December 2018 VA contract opinion, the same examiner again noted a review of the claims file and revised his opinion noting that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. By way of rationale the contract examiner only offered the following: Patient had normal hearing during service. The Board is not competent to provide its own medical assessment. However, as a lay reader of the results of the audiometric examinations in service, the Board cannot find a change of more than 5 decibels in one ear at one frequency. The Board finds that the weight of competent medical evidence is that the Veteran had normal hearing acuity that did not worsen during active duty. Service connection may still be granted even if a disability did not manifest in service. In this case, the contract VA examiner did twice note a review of the file, acknowledged the Veteran’s noise exposure, provided a revised assessment of the in-service test results, and found that the current hearing loss was not caused by the noise exposure in this Veteran’s case. There is no other competent opinion of record. As such, service connection for bilateral hearing loss is not warranted. REASONS FOR REMAND Left knee injury The Veteran submitted an informal claim for compensation in March 2009 in part for service connection for a right knee injury line of duty. That request for a right knee line of duty claim is consistent with his Service Treatment Record (STR) that reports a line of duty injury to his right knee in service in December 1966. VA took no action on the informal claim and asked the Veteran to resubmit it on the proper form, which he did not do until September 2018. In the 2018 claim on the proper form, the Veteran clearly indicated a claim for service connection for a left knee injury and signed the form. Following the RO’s January 2019 denial of service connection for the left knee (noting no left knee injury in service), the Veteran submitted a February 2019 notice of disagreement in which he described an injury to his left knee during a field exercise when his foot was wedged in a tank turret mechanism. This is identical to the injury noted in the STR in December 1966 that showed an injury to the right knee in a tank turret mechanism. A clinician noted a contusion and ligamentous strain of the right knee. The Veteran underwent a VA knee examination in June 2019. The examiner noted the service record entry in 1966 of an injury to the right knee. The examiner noted the Veteran’s report that his legs were caught in the turret and then discussed the displacement of the left kneecap and that now both knees ache. Imaging studies showed arthritis and patellar dislocations in both knees. The examiner did note that the patellar dislocations were congenital and not a disability in this Veteran’s case. The examiner provided an opinion that addressed both knees as follows: The problem in service is consistent with an acute and resolved strain of medial ligament and contusion. The history of the veteran giving of bilateral patella dislocations with self-reductions is due to his inherent developement (sic) of laterally placed patellas. They can easily and naturally displace. This is only an individual factor of how his knees are made up, nothing more. There is no indication of continued problems of his left or right knee from the inservice incident. It appears that osteoarthritis has developed in his bilateral knees which is due to aging with reports of this occurring over 40 years after service- a natural development. The Veteran submitted a supplemental claim September 2019 for the left knee disability as secondary to the right knee injured during active military service in 1966. This again suggests an initial intent to seek service connection for the right knee and now for both knees. Resolving all doubt in the Veteran’s favor, the Board finds after a liberal reading of the entire file that it is not clear whether the claim is actually for the left knee, or the right knee, or both. To correct this error the Board is remanding this issue for further development to provide the Veteran the opportunity to clarify the claim and for the RO to make any necessary changes to the decision. The matter is REMANDED for the following action: 1. Based on the Service Treatment Record and the Veteran’s original compensation claim, and any other relevant evidence, verify which or both knees are the subject of the original claim and allow the Veteran to correct his direct claim for compensation. 2. Because the Veteran submitted a September 2020 claim for service connection for his left knee as secondary to his right knee condition, once the Veteran’s original claim for service compensation for the knee injured in service is decided, correct the record, conduct any necessary development and adjudicate service connection for the other knee on a direct or secondary basis. 3. If the service connection outcome is still negative, and the Veteran, provide the Veteran with a statement of the case or supplemental statement of the case as appropriate with an opportunity to respond. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Black, 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.