Citation Nr: 21061761 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 11-04 779 DATE: October 5, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT It is at least as likely as not that right ear hearing loss first manifested during a period of active duty service and has existed chronically since that time, and left ear hearing loss is etiologically related to a period of active duty for training (ACDUTRA). CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303, 3.307. 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty in the U.S. Navy from May 1963 to May 1967. The Veteran had additional service in the Naval Reserve, Air Force Reserve, and Army National Guard, with periods of ACDUTRA and inactive duty for training (INACDUTRA). This matter comes to the Board of Veteran's appeals on appeal from a September 2010 rating decision of a Department of Veteran's Affairs (VA) Agency of Original Jurisdiction (AOJ). This matter has been remanded several times since 2013, and most recently in April 2020. Regardless of whether the AOJ has substantially complied with all remand directives, the issue is granted and any due process deficiency is moot. 1. Entitlement to service connection for bilateral hearing loss. The Veteran seeks entitlement to service-connection for bilateral hearing loss, which he asserts is etiologically related to acoustic trauma he sustained during periods of active duty and ACDUTRA. See October 2011 statement in support of claim; see April 2017 statement in support of claim. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred in the line of duty. 38 U.S.C. § 101(21),(24); 38 C.F.R. § 3.6(a). Active military, naval, or air service also includes any period of INACDUTRA during which the individual concerned was disabled from an injury incurred in the line of duty. Id. Accordingly, service connection may be granted for disability resulting from disease or injury incurred in, or aggravated, while performing ACDUTRA or from injury incurred or aggravated while performing INACDUTRA. 38 U.S.C. §§ 101(24), 106, 1110, 1131. For purposes of applying VA laws, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz 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. With respect to claims for service connection for hearing loss, the United States Court of Appeals for Veterans Claims (Court) has found that the threshold for normal hearing is from 0 to 20 decibels and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service. Service connection for certain chronic diseases may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, the Veteran generally reports that he first noticed symptoms of hearing loss after basic training, that those symptoms gradually worsened over time, and the hearing loss was further aggravated by exposure to hazardous noise during ACDUTRA training drills. Although he also worked in a civilian occupation where he was exposed to noise, he has testified that hearing protection was mandatory. See October 2010 and October 2011 statements in support of claim. Therefore, he asserts his only significant noise exposure was from artillery fire onboard ship as a boatswain and during training drills. First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). An April 1980 report of medical examination documents the Veteran's right ear auditory thresholds were greater than 40 decibels at 500 Hz. A May 1991 Department of Defense audiogram shows the left ear auditory thresholds were greater than 26 decibels at 2000, 3000, and 4000 Hz. Those findings demonstrate a hearing loss disability for VA purposes in both ears. An October 2005 VA examiner diagnosed right ear severe to mild conductive hearing loss at 500 to 1000 Hz, and mild to moderate sensorineural hearing loss at 2000 to 4000 Hz. For the left ear, the examiner only diagnosed mild sensorineural hearing loss. More recently, a March 2021 VA examiner reported the Veteran only had sensorineural hearing loss. In sum, there is a hearing loss disability for VA purposes during the appeal period. Second, the Board finds that there was an in-service event, injury or disease. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). In-service exposure to hazardous noise is conceded. See December 2013 Board decision. The Veteran's personnel records show he was a boatswain during his period of active duty, which has a high risk of exposure to hazardous noise from artillery fire. The Veteran was also exposed to hazardous noise during ACDUTRA. The exact dates of the Veteran's ACDUTRA periods are unknown, but the service personnel records specifically show the Veteran received active duty points towards retirement from February 1981 through February 1983, November 1988 to September 1989, and November 1989 to August 1993. Those records also show the Veteran was present for drills in September 1979, October 1979, and January 1980. ACDUTRA orders from August 1992 document the Veteran was to report to the unit armory for training. Those records are consistent with the Veteran's testimony that he had military drills during training that exposed him to hazardous noise. It is at least as likely as not that symptoms of right ear hearing loss first began in active duty service. The Veteran's May 1963 entrance examination did not show a hearing loss disability for VA purposes of either ear. The Department of Defense is presumed to have recorded auditory thresholds using American Standards Association (ASA) after December 31, 1970. Prior to then, when it is unclear whether such thresholds were recorded in using ASA units or International Standards Organization-American National Standards Institute (ISO-ANSI) units, the Board will consider the recorded metrics under both standards, relying on the unit measurements most favorable to the Veteran's appeal. Audiometric data originally recorded using ASA standards will be converted to ISO-ANSI standard by adding between 5 and 15 decibels to the recorded data as follows: Hertz 250 500 1000 2000 3000 4000 add 15 15 10 10 10 5 The May 1963 entrance examination findings, when converted from ASA to ISO-ANSI, did show some degree of hearing impairment at 500 Hz bilaterally because the auditory threshold at that frequency was 25 decibels for both ears. The May 1967 separation examination did not contain audiometric findings and did not include an accompanying report of medical history. Therefore, it is unclear whether the Veteran reported hearing loss at separation from his first period of service, or whether there was a significant threshold shift from entrance to separation. The Veteran has testified that he first noticed symptoms of hearing loss after basic training in May 1963. The Veteran is competent to report the onset of noticeable hearing loss. In contrast, the May 1963 entrance examination does not document any subjective report of hearing impairment and auditory thresholds were not recorded at separation. Generally, the evidence shows that the Veteran did not have a hearing loss disability for VA purposes at entrance, he is presumed sound, and he first noticed symptoms of hearing loss during active duty. Several VA examiners have pointed to a December 1970 Department of Defense audiogram as evidence the Veteran had normal hearing bilaterally 3 years after separation from service, however those examiners did not convert the findings of that audiogram from ASA to ISO-ANSI standards. When converted, the auditory threshold at 500 Hz was over 26 in the right ear, indicating a worsening since entrance. It is at least as likely as not that symptoms of right ear hearing loss first began in active duty service and gradually worsened over time until it became a hearing loss disability for VA purposes that was first noted on the April 1980 report of medical examination. Regarding the left ear, some degree of hearing impairment was noted on an audiogram dated February 1980 taken a few months after the personnel records show the Veteran participated in multiple drills. A left ear hearing loss disability for VA purposes was first noted on a May 1991 audiogram. Although the Veteran's actual dates of ACDUTRA are unknown, he did receive active duty retirement points for the time period encompassing May 1991 when he was in the Army National Guard. It is at least as likely as not that symptoms of left ear hearing loss and a hearing loss disability for VA purposes manifested during ACDUTRA. Third, it is at least as likely as not that the currently diagnosed left and right sensorineural hearing loss are etiologically related to the Veteran's period of service, to include as due to acoustic trauma. In October 2009, private doctor DW wrote that the Veteran had bilateral sensorineural hearing loss due to a combination of genetics and noise exposure during service. Dr. DW estimated that the Veteran's noise exposure during service contributed to about 25 percent of the problem. Dr. DW also wrote that the right ear conductive hearing loss was associated with the Veteran's tinnitus in the right ear. In December 2011, hearing instrument specialist MG wrote that the Veteran's bilateral sensorineural hearing loss was initially due to noise exposure, and the accompany progress note only reports military noise exposure. The Board previously found the private opinions inadequate to support a grant on their own, however the opinions are still evidence in support of the claim. Further, although Dr. DW wrote that conductive hearing loss was not related to noise exposure, that does not address whether conductive hearing loss first manifested in service. Following the most recent Board remand in April 2020, VA obtained competing addendum opinions dated March 2021 and August 2021. The March 2021 examiner diagnosed bilateral sensorineural hearing loss and opined that the condition was at least as likely as not etiologically related to noise exposure in active duty and ACDUTRA. The examiner considered the entrance examination but noted the Veteran had normal hearing bilaterally that gradually worsened over time until a bilateral significant shift in hearing according to the Department of Defense was noted in May 1992. The examiner noted the Veteran was exposed to hazardous noise during his Reserve and Guard service, and the examiner adequately considered the lay testimony that the Veteran wore hearing protection at his civilian job. The August 2021 examiner provided conflicting opinions but relied heavily on the December 1970 findings that had not been properly converted to ISO-ANSI and the examiner did not adequately consider the lay testimony of hearing protection used in the civilian career. Regarding the right ear sensorineural and conductive hearing loss, the Board finds that it is at least as likely as not that the right ear hearing loss disability in its entirety first had onset during his period of active duty service. Service connection is already in effect for tinnitus and Dr. DW explained that the right ear conductive hearing loss was associated with the right ear tinnitus. The March 2021 examiner similarly opined that the tinnitus was a manifestation of the right ear hearing loss disability. While the Veteran did not have a hearing loss disability for VA purposes during his period of active duty service, it is at least as likely as not that he was exposed to hazardous noise and had some degree of right ear hearing loss in service. It is also at least as likely as not that conductive hearing loss had onset in service and has existed chronically since that time. The chronicity of symptoms since an in-service onset, supported by both the lay and objective evidence, is sufficient to meet the criteria for presumptive service connection for all hearing loss manifestations of the right ear. The claim of entitlement to service connection for right ear hearing loss is therefore granted. Regarding the left ear hearing loss, it is at least as likely as not that the left ear hearing loss disability had onset during a period of ACDUTRA and is etiologically related to exposure to hazardous noise during a period of ACDUTRA. The dates of ACDUTRA have not been verified through no fault of the Veteran's and the March 2021 examiner is the only VA examiner to have adequately considered the lay testimony of hearing protection worn at the Veteran's civilian job. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for left ear hearing loss are also met and the Veteran's claim is fully granted. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Smith, 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.