Citation Nr: 21004322 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 15-35 323A DATE: January 26, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. REMANDED Entitlement to a compensable evaluation for scarring of the right hand is remanded. FINDING OF FACT High frequency hearing loss was clinically noted on separation from the military, and the Veteran has credibly complained of gradual hearing loss since separation. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Navy from July 1971 to June 1975 and from October 1977 to September 1983. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from April 2013 and March 2016 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in November 2018. This case was previously before the Board in November 2019, when it was remanded for development. The case has been returned to the Board for further appellate review. Rating decisions in August and September 2020 granted entitlement to service connection for disabilities claimed as myalgias and arthralgias of the neck, shoulder, and arms. These actions represent a total grant of the benefit sought on appeal with respect to this issue, and it is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). The Board notes the RO issued a supplemental statement of the case regarding service connection for the right knee, to which the Veteran responded in November 2020. However, as the Board denied the reopening of this claim in the November 2019 decision, this issue is no longer on appeal. 1. Entitlement to service connection for bilateral hearing loss 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 military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also 38 C.F.R. § 3.303, Hickson v. West, 12 Vet. App. 247, 252-53 (1999). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, including hearing loss and tinnitus, will be granted service connection on a presumptive basis if there is evidence they manifested within a year of separation from service. 38 C.F.R. §§ 3.307(a), 3.309(a). Alternatively, for such chronic diseases shown in service, the second and third elements of service connection may be established through demonstrating chronicity or continuity of symptomatology. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (section 3.303(b) only applies to the chronic disabilities listed in 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a)); see also Fountain v. McDonald, 27 Vet. App. 258, 271 (2015) (holding section 3.309(a) “includes tinnitus, at a minimum where there is evidence of acoustic trauma, as an ‘organic disease[ ] of the nervous system’”). The Veteran currently has hearing loss as defined by VA regulations in both ears. See 38 C.F.R. § 3.385. The Veteran testified at the November 2018 Board hearing that he was exposed to excessive noise during active duty as a deck seaman on air craft carriers, as well as when handling live gunnery without hearing protection. The Board finds that this activity constitutes noise exposure and satisfies in the in-service event element for service connection. The Veteran’s service treatment records contain the following audiograms, with results in decibels. In April 1971, upon enlistment: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 5 LEFT 10 5 15 5 In May 1975, upon first separation from active duty: HERTZ 500 1000 2000 3000 4000 RIGHT 20 10 0 5 5 LEFT 45 25 20 15 5 In August 1977, in the Navy Reserves, prior to the second period of active duty in October 1977: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 0 x 5 LEFT 10 15 25 x 5 In February 1979: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 0 10 10 LEFT 20 10 20 15 10 A notation on this February 1979 audiogram notes mild hearing loss in the left ear at the 500 and 2000 level frequencies. In March 1980: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 0 5 10 LEFT 20 15 20 15 10 In September 1983, upon separation: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 10 25 5 LEFT 20 10 15 20 15 At the separation examination, the Veteran endorsed hearing loss in his report of medical history, and high frequency hearing loss was clinically noted in the summary of defects and diagnoses. Additionally, there is an audiogram in the record taken in September 1984 in conjunction with a VA examination: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 5 x 5 LEFT 30 15 20 x 20 The Veteran testified at the Board hearing that he has experienced hearing loss symptoms since his time on active duty, but did not seek audiological treatment until the 1990s. He also testified that his wife has complained since his time on active duty that he always turns the volume on the television up too loud. A January 2011 VA examiner opined that the current hearing loss is less likely as not related to military noise exposure because his audiometric test results at enlistment and discharge were within normal limits of hearing. At a July 2020 VA audiological examination, the Veteran reported that his hearing loss seems to have been present since his military service. The examiner reviewed the service treatment records and noted normal thresholds in both ears at the April 1971 enlistment audiogram, and the mild low frequency loss in the left ear at the May 1975 audiogram. The examiner stated the November 1975, February 1979, March 1980, and September 1983 audiograms all show normal thresholds in both ears, but the September 1984 audiogram showed high frequency loss in the left ear. The examiner opined that, although there are temporary shifts in hearing acuity during service, these appeared to resolve, and since there is no appreciable permanent threshold shift from enlistment to separation, the current hearing loss is less likely as not due to or incurred in service. After review of the record, the Board finds that service connection for bilateral hearing loss is warranted. Although both VA examiners provided negative etiology opinions, these opinions are both based on an inaccurate premise. The Court has held that 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). Therefore, hearing loss is shown on the Veteran’s September 1983 separation examination and on the September 1984 VA examination, within one year of separation. Further, neither VA examiner discussed the clinical notation of high frequency hearing loss made on the September 1983 separation examination or the Veteran’s endorsement of hearing loss at the separation examination. The July 2020 VA examiner failed to address the Veteran’s lay statements that he experienced hearing loss symptoms since military service. For these reasons, the Board finds these opinions to be inadequate and not persuasive. The Veteran is competent to report symptoms observable by the senses such as hearing loss. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although he is not competent, as a lay person, to provide an opinion on a complex medical opinion such as the cause of the hearing loss, his reports of experiencing hearing loss symptoms since service coupled with the clinical notation of high frequency hearing loss upon separation and the audiogram showing continued hearing loss within a year of separation indicate an incurrence in service of hearing loss and continuity of symptomatology to present. See 38 C.F.R. § 3.303(b). Therefore, service connection for bilateral hearing loss is warranted. REASONS FOR REMAND 1. Entitlement to a compensable evaluation for scarring of the right hand is remanded. The prior Board remand noted the Veteran’s testimony that his service-connected scarring of the right hand causes numbness and tightness in his right hand, as well as limitation of motion and difficulty lifting objects. On remand, the RO obtained an examination addressing the current severity of the scar itself, but did not obtain any medical evidence regarding the Veteran’s complaints of functional limitation resulting from the scarring. Therefore, a remand is necessary to obtain an examination of the scarring’s effect on the Veteran’s ability to use his right hand. The matters are REMANDED for the following action: (Continued on the next page)   Schedule the Veteran for an examination with an appropriate clinician to determine the current severity of the Veteran’s service-connected scarring of the right hand. The examiner is specifically asked to identify any functional limitations resulting from this disability, including, but not limited to, numbness, tightness, weakness, and limitation of motion. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Josey, 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.