Citation Nr: 21062980 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 17-43 955 DATE: October 12, 2021 ORDER Service connection for bilateral hearing loss is granted. FINDINGS OF FACT 1. The Veteran has a currently diagnosed right and left ear hearing loss disability during the appellate period. 2. The probative evidence of record is at least in equipoise as to whether the Veteran's bilateral hearing loss is a result of service or is etiologically related to in-service noise exposure. CONCLUSION OF LAW The criteria for a grant of service connection for bilateral hearing loss has been met. 38 U.S.C. §§ 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.1, 3.102, 3.303, 3.304, 3.307, 3.309, 3.159, 3.385, 4.85, 4.86. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from February 1970 until his honorable discharge in June 1970. The Veteran had additional service in the Tennessee National Guard and as a Reservist in the United States Army from November 1969 to August 1978, and in the Florida National Guard and as a Reservist in the United States Army from August 1978 to August 1979; the Veteran had multiple periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). The Board of Veterans' Appeals (Board) thanks the Veteran for his service to our country. This matter is before the Board on appeal from a March 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board observes the Veteran initially requested a Board hearing in his August 2017 substantive appeal. See VA Form 9. In correspondence dated August 2021, the Veteran wrote, "I wish to cancel my request for a hearing and have my case decided by direct law review." See August 2021 VA Form 21-4138. Accordingly, the Veteran's request for a Board hearing is considered withdrawn. Legal Criteria for Service Connection 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; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prevail on the issue of service connection, the evidence must show: (1) the existence of a current disability; (2) an in-service incurrence or aggravation of a disease or injury; or (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307, 3.309(a). The chronic diseases listed in 38 C.F.R. § 3.309(a) include sensorineural hearing loss. The presumption for chronic diseases relaxes the evidentiary requirements for establishing entitlement to service connection. Walker v. Shinseki, 708 F.3d 1131, 1338 (Fed. Cir. 2012). Specifically, § 3.303(b) provides that when a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes"). If the evidence is not sufficient to show that the disease was chronic at the time of service, then the claim may be established with evidence of continuity of symptoms after service, which is a distinct and lesser evidentiary burden than the nexus element three-part test under Shedden. Walker, 708 F.3d at 1138; 38 C.F.R. § 3.303(b). Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during a] presumptive period." When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection for bilateral hearing loss. The Veteran contends his bilateral hearing loss is the result of exposure to acoustic trauma during service. Impaired hearing is defined as a disability under VA law 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 0 to 20 decibels; higher thresholds indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). Initially, the Board observes the Agency of Original Jurisdiction (AOJ) made the following favorable finding: Veteran has been diagnosed with a left ear hearing loss disability. See March 2016 rating decision. The Board will not disturb this favorable finding. 38 C.F.R. § 3.104. Thus, the Board will address the issue of whether the Veteran has a currently diagnosed right ear hearing loss disability within the appellate period. Turning to the evidence of record, the Veteran was afforded a VA audiological examination in January 2015. Although testing was attempted, results were recorded as "CNT" (could not test) at all threshold levels of audiometric and speech discrimination testing. The examiner explained testing could not be done. In October 2015, the Veteran submitted audiological examinations from Costco Hearing Aid Center, Avada Hearing Care Centers, and an "unidentified source". The Board observes the March 2015 Costco Hearing Aid Center audiological examination provides audiometric testing results only in a graphic representation with no numeric interpretation provided. However, because the audiometric results are conveyed in a straightforward graph with a key for interpretation, the Board may examine the charts to determine the numeric values of the puretone levels for adjudication purposes. See Kelly v. Brown, 7 Vet. App. 471 (1995). The examiner noted the Veteran's hearing acuity in puretone thresholds, in decibels as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 85 80 85 80 80 Speech recognition score was not reported; however, the Veteran's puretone threshold scores met the definition of hearing loss disability in the right ear for VA purposes. 38 C.F.R. § 3.385. The August 2015 Avada Hearing Care Centers audiological examination provides audiometric testing results only in a graphic representation with no numeric interpretation provided. However, because the audiometric results are conveyed in a straightforward graph with a key for interpretation, the Board may examine the charts to determine the numeric values of the puretone levels for adjudication purposes. See Kelly, 7 Vet. App. 471. The examiner noted the Veteran's hearing acuity in puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 55 55 70 75 75 Speech recognition scores were not reported; however, the Veteran's puretone threshold scores met the definition of hearing loss disability in the right ear for VA purposes. 38 C.F.R. § 3.385. Lastly, the August 2015 "unidentified source" audiological examination provides audiometric testing results only in a graphic representation with no numeric interpretation provided. However, because the audiometric results are conveyed in a straightforward graph with a key for interpretation, the Board may examine the charts to determine the numeric values of the puretone levels for adjudication purposes. See Kelly, 7 Vet. App. 471. The examiner noted the Veteran's hearing acuity in puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 75 65 80 90 90 The private examination does not indicate whether the Maryland CNC test was used for the speech discrimination portion of the examination. However, the Veteran's puretone threshold scores met the definition of hearing loss disability in the right ear for VA purposes. 38 C.F.R. § 3.385. The Veteran was afforded a subsequent VA audiological examination in January 2016. The examiner noted the Veteran's hearing acuity in puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 25 25 35 Speech audiometry revealed speech recognition ability of 100 percent in the right ear. The examiner stated these test results were valid for rating purposes and the use of a speech discrimination score (Maryland CNC Test) was appropriate for the Veteran. The examiner diagnosed right ear sensorineural hearing loss in the frequency range of 500-4000 Hz. In a December 2017 addendum opinion, the VA examiner stated there is documentation of hearing loss on several exams in 2015, including Costco exam which revealed a profound to severe bilateral hearing loss, Avada exam which revealed a severe bilateral hearing loss, and an unidentified test which revealed a severe to profound loss bilaterally. After reviewing the evidence, the Board resolves any reasonable doubt in favor of the Veteran and finds he has a currently diagnosed right ear hearing loss disability for VA purposes during the appellate period. See 38 C.F.R. § 3.385. Turning to the second element of service connection, an in-service incurrence, the Board finds this element is also met. The AOJ made the following favorable findings: (1) the Veteran's military occupational specialty (MOS) of Aircraft Maintenance Apprentice/Specialist is shown to have a high probability of hazardous noise exposure; (2) the Veteran was awarded a M-16 Expert Badge; and (3) the Veteran reported military noise exposure from UH-1 helicopters. Therefore, exposure to hazardous noise during military service is presumed. See June 2017 Statement of the Case. These are favorable findings that will not be readjudicated by the Board. 38 C.F.R. § 3.104. Thus, the question before the Board is whether the Veteran's bilateral hearing loss was incurred in or is related to his military service, to include presumed in-service noise exposure. The Veteran's service treatment records (STRs) show the Veteran had his hearing tested at the beginning of his Army National Guard service (unfortunately the audiometer results are not legible), and in May 1979, at his separation from active duty service. Additionally, the Veteran had his hearing tested in July 1974 and February 1978, during his service in the Tennessee Army National Guard. The puretone thresholds during these examinations do not rise to the level of a hearing disability for VA purposes, however they do show some degree of hearing loss. The absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability, i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above, and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley, 5 Vet. App. at 159. In a January 2014 statement, the Veteran explained as an Aircraft Mechanic he was routinely exposed to noise from UH-1 helicopters. He denied post-service acoustic trauma. As noted above, the Veteran was afforded a VA audiological examination in January 2015. During the examination the Veteran reported bilateral hearing loss. He reported in-service exposure to helicopters without the use of hearing protection. He denied post-service occupational and recreational noise exposure. Although testing was attempted, results were recorded as "CNT" (could not test) at all threshold levels of audiometric and speech discrimination testing. In his October 2015 correspondence, the Veteran explained as an aircraft maintenance soldier he was constantly exposed to noise from helicopters and aircraft, without the use of ear protection. He sought treatment from hearing specialists at Costco Hearing Aid Center, Avada Hearing Care Centers, and an "unidentified source. The Veteran was afforded a VA audiological examination in January 2016. During the examination the Veteran reported bilateral hearing loss. He reported in-service exposure to artillery and helicopter noise. He denied post-service occupational and recreational noise exposure. The examiner diagnosed bilateral sensorineural hearing loss in the frequency range of 500-4000 Hertz and opined the Veteran's condition was less likely than not related to military service. In providing the negative nexus opinion, the examiner stated a review of the Veteran's in-service audiograms showed hearing levels within normal limits and no significant threshold shifts. In June 2017, the AOJ requested an addendum opinion. Specifically, the AOJ requested the examiner consider and discuss delayed onset of hearing loss and its underlying cause, if applicable. In providing a negative nexus opinion the examiner relied on an Institute of Medical (IOM) report, a report which the examiner stated, "There is not sufficient evidence from longitudinal studies in lab animals or humans to determine whether permanent noise induced hearing loss can develop much later in one's lifetime long after the cessation of noise exposure. Although the definitive studies to address this issue have not been performed, based on anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur." The examiner concluded, considering this, it is not likely that the Veteran's current hearing loss is the result of his military service. On his substantive appeal (VA Form 9), the Veteran stated his hearing was adversely affected by the same acoustic trauma that caused his service-connected tinnitus. He stated the only acoustic trauma to which he has been exposed was military acoustic trauma. In December 2017, the AOJ requested an addendum opinion. Specifically, the AOJ requested the examiner provide an opinion as to whether the Veteran's current bilateral hearing loss is related to his service-connected tinnitus. In providing a negative nexus opinion, the examiner stated the existence of tinnitus does not necessarily mean the existence of hearing loss. The examiner stated the Veteran reported that his tinnitus onset was during his military service. The examiner noted the Veteran's hearing levels during military service were within normal limits. The examiner stated the 2015 exams, which document hearing loss, are forty (40) years following military service. The examiner concluded, considering the delay between the hazardous noise exposure, and the documentation of hearing loss, it is not likely that the Veteran's current hearing loss is the result of the hazardous noise exposure during military service. The Board has the responsibility of determining the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider. See Prejean v. West, 13 Vet. App. 444 (2000). Upon review, and resolving any reasonable doubt in the Veteran's favor, the Board finds the Veteran's bilateral hearing loss is related to his in-service noise exposure. 38 C.F.R. § 3.102. The Board observes no medical opinions were provided in the March 2015 Costco Hearing Aid Center examination, August 2015 Avada Hearing Care Centers examination, and the August 2015 "unidentified source" examination. Thus, these examinations are not probative as to whether the hearing loss had onset during or is otherwise related to service. The Board finds the January 2016 medical opinion and subsequent December 2017 addendum inadequate. In this regard, it must be clear that the examiner has considered all procurable and assembled data prior to reaching such a conclusion. Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). Specifically, the examiner did not address the Veteran's competent and credible statements regarding in-service onset and continuity of his symptoms since service separation. Additionally, the Board notes that a negative etiological opinion based solely upon the lack of evidence of complaints or treatment for symptoms in a Veteran's STRs is inadequate. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Moreover, entitlement to service connection for hearing loss does not require the criteria under 38 C.F.R. § 3.385 be met during service. Hensley, 5 Vet. App. 155. Furthermore, although the June 2017 examiner found the Veteran's hearing loss unrelated to service, the Board does not afford this opinion any probative weight as it is based, in part, on the portion of the IOM study found problematic by the United States Court of Appeals for Veterans Claims (Court) in McCray v. Wilkie, 31 Vet. App. 243 (2019). The Court explained that the qualifying or contradictory statements in the IOM report, which are of record here, impact the probative value and adequacy of a VA medical opinion. The Court indicated that to be adequate, a negative opinion relying on the study must sufficiently address the existence of any factors that may impact the probative value of a medical text which addresses an unsettled medical question. As the January 2016, June 2017, and December 2017 medical opinions are inadequate, they cannot serve as the basis of a denial of entitlement to service connection. Although there is no medical nexus opinion of record linking the Veteran's current diagnosis of bilateral hearing loss to his military service, the lack thereof is not dispositive. The Board has considered whether the Veteran has presented a continuity of symptomatology associated with his bilateral hearing loss and finds he has done so. As discussed above, the Veteran reported experiencing symptoms of hearing loss while in service. The Veteran is competent to report the onset and continuation of his hearing loss, and the Board finds his statements credible. Layno v. Brown, 6 Vet. App. 465 (1994). The Board observes lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). After a careful review of the record, the Board finds the Veteran's bilateral hearing loss had its onset in service due to hazardous noise exposure and has continued since that time. Walker, 708 F.3d at 1338. The Veteran has competently and credibly indicated the onset of hearing loss during military service, coincident with his duties as an Aircraft Maintenance Apprentice/Specialist, and that he has continued to experience such symptoms since service. He is competent to report symptoms of hearing loss, as they are subject to and readily observable by laypersons, and the Board has no reason to doubt his credibility. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. Therefore, service connection for bilateral hearing loss is warranted. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Grace Johnk, 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.