Citation Nr: 21066253 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 16-05 594 DATE: October 29, 2021 ORDER Service connection for bilateral hearing loss disability is granted. FINDINGS OF FACT 1. The Veteran has current bilateral ear hearing loss disability for VA compensation purposes. 2. The Veteran's bilateral hearing loss disability is the result of in-service hazardous noise exposure on a daily basis to powerful jet engines, motor and engine driven generator sets, high and low pressure air compressors, and to other loud equipment on the flight line, as part of his military occupational specialty (MOS) duties as an aircraft ground maintenance technician while serving with the U.S. Air Force from 1959 to 1963. 3. The Veteran is already service connected for tinnitus due to the same in-service hazardous noise exposure. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, the criteria for service connection for bilateral hearing loss disability have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 1154(a), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1959 to August 1963 in the U.S. Air Force. This appeal has been advanced on the Board's docket. 38 U.S.C. § 7107(b) (effective February 19, 2019); 38 C.F.R. § 20.800(c) (2020). This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a September 2014 rating decision issued by an AOJ of the Department of Veterans Affairs (VA). In December 2017, February 2020, October 2020, and July 2021, the Board remanded the appeal for further development. This case has since been returned to the Board for appellate review, after the AOJ attempted to comply with the Board's remand orders. Cf. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection for Bilateral Hearing Loss 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) the existence of 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 disease or injury incurred or aggravated during service the "nexus" requirement. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Under 38 C.F.R. § 3.303(d), disorders diagnosed after discharge may also still be service connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). VA is to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). There is no categorical rule that medical evidence is required when the determinative issue is either medical etiology or a medical nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board should make explicit findings regarding the competency and, if necessary, the credibility of the lay evidence of record. Miller v Wilkie, 32 Vet. App. 249, 257-262 (2020). Lay testimony is competent to describe the presence of readily observable features or symptoms of injury or illness that are not medical in nature, such as varicose veins, tinnitus, and flat feet. See 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303, 307-310 (2007). The Federal Circuit has also clarified that lay evidence can be competent for the medical diagnosis or etiology of a condition if: (1) the 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. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). And if the disability is of the type for which lay evidence is competent, the Board must weigh the probative value of that lay evidence against other evidence of record in making its determination regarding the award of service connection. Buchanan v. Nicholson, 451 F.3d 1331, 1334-37 (Fed. Cir. 2006). In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1991). That is, the claimant is entitled to the benefit of the doubt when the evidence is in "approximate" balancei.e., "nearly equal"but does not require that the evidence be in exact equipoise. Lynch v. McDonough, 999 F.3d 1391, 1394 (Fed. Cir. 2021). The Veteran contends he developed a bilateral hearing loss disability as the result of noise exposure during his active service in the Air Force. Specifically, he has asserted that he was exposed on a daily basis to hazardous noise from powerful jet engines, motor and engine driven generator sets, high and low pressure air compressors, and other loud equipment on the flight line. This noise exposure occurred on a daily basis as part of his MOS duties as an aircraft ground maintenance technician for four years with the Air Force from 1959 to 1963. His DD Form 214 and service personnel records (SPRs) confirm that he did serve in this capacity. He has advised that oftentimes he did not wear hearing protection during active duty. Post-service, the Veteran has inconsistently stated when exactly he first noticed his initial symptoms of hearing loss e.g., onset from 2006 to 2008 (see September 2014 VA audiology examination); onset in 1999 (see December 2014 VA audiology consult); and onset "sometime in the 1970s" (see April 2021 VA audiology examination and opinion). In any event, he does acknowledge his hearing loss exhibited a "delayed onset" post-service. Post-service, as a civilian, he has denied any occupational noise exposure for the 30 years that he worked as a vehicle assembler at the Ford Motor Company. However, he did report occasional post-service recreational noise exposure from power tools. Finally, he has submitted medical treatise evidence in support of the theory that exposure to low levels of jet propulsion fuel during service in the Air Force can cause the development of hearing loss. At the outset, the AOJ in a November 2019 rating decision already granted the Veteran service connection for tinnitus. The tinnitus award was based on the same in-service hazardous noise exposure discussed above. 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). But according to VA standards, impaired hearing will only be considered 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 these frequencies 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 the present case, the Veteran's sensorineural hearing loss (an "organic disease of the nervous system") is considered by VA to be a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). Under 38 C.F.R. § 3.303(b), where the evidence shows an enumerated "chronic disease" in service (or within the presumptive period under § 3.307), or "continuity of symptoms" of such a disease after service, the disease shall be presumed to have been incurred in service. Walker, 708 F.3d 1335-1337. Service connection for certain enumerated diseases, such as sensorineural hearing loss (organic disease of the nervous system), may be also be established on a presumptive basis by showing that it manifested itself 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; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Upon review of the evidence of record, the Board grants the appeal for service connection for bilateral hearing loss disability. As currently codified, VA law defines the "benefit of the doubt" doctrine as: When, after consideration of all evidence and material of record in this case before the Department with respect to benefits under laws administered by the Secretary, there is an "approximate" balance of positive and negative evidence regarding the merits of an issue material to the determination in the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b). See also 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In the present case, there is an approximate balance of the positive and negative evidence on the issue of service connection for bilateral hearing loss disability. Certain elements of both the positive and negative clinical evidence of record in this case are probative. All of the clinical evidence has its respective flaws as well. But there is no apparent basis for wholly rejecting the favorable clinical evidence of record. In light of the contrasting, yet equally probative clinical evidence in the present case, in such situations, the benefit of the doubt is resolved in the Veteran's favor. With regard to the favorable evidence, first, there is clear proof of a current disability for bilateral ear hearing loss. See 38 U.S.C. § 1110; Degmetich v. Brown, 104 F.3d 1328, 1332 (1997). In fact, in Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007), the Court specifically upheld the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes. Specifically, an April 2021 VA audiology examination revealed bilateral sensorineural hearing loss disability according to the clear, established requirements of 38 C.F.R. § 3.385. This was established by way of pure tone thresholds of 40 decibels or greater at various frequencies in both ears and speech discrimination scores of less than 94 percent in both ears. Thus, the existence of a current disability is undisputed for bilateral hearing loss. With regard to the favorable evidence, second, the Department of Defense's Duty MOS Noise Exposure Listing indicates that the Veteran's in-service MOS an aircraft ground maintenance technician for four years with the Air Force involved a "high" probability of noise exposure during service. His STRs and SPRs confirm he was exposed to hazardous noise from aircraft engines and machinery and aircraft ground equipment. On this basis, there is a qualifying event, injury, or disease that had its onset during the Veteran's service. Therefore, hazardous noise exposure during his period of active duty from 1959 to 1963 is consistent with the places, types, and circumstances of the Veteran's duties in the Air Force. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). With regard to the favorable evidence, third, several years into his active duty Air Force service, the Veteran underwent an audiogram per a May 1961 STR hearing conservation report. This particular STR documented at that time that the Veteran was working in a noisy environment for the previous two years in the Air Force for eight hours a day and "seldom or never" used hearing protection. Prior to November 1, 1967, service department audiometric test results were reported in standards set forth by the American Standards Association (ASA). However, after November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison in this decision, for service department audiometric test results through October 31, 1967, the ASA standards have been converted to ISO-ANSI standards. For reference purposes, the conversion results are as follows: (For ISO conversion, the Board added (+15) (+10) (+10) (+10) (+5) to the pre-November 1967 ASA results respectively). Specifically, after conversion to the ISO-ANSI standard, the May 1961 STR audiogram demonstrated pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 20 20 20 15 LEFT 25 20 25 20 15 Thus, the May 1961 STR audiogram revealed the development of diminished hearing during active duty of 30 decibels in the right ear at 500Hz and 25 decibels in the left ear at 500Hz and 2000Hz. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (higher threshold levels above 20 decibels may indicate some degree of hearing loss). In other words, at these frequencies, his May 1961 STR audiogram established a higher threshold level above 20 decibels in the right and left ears. Although supportive of diminished bilateral hearing during active duty, the May 1961 STR audiogram did not meet the stricter criteria for hearing loss disability as defined by VA under 38 C.F.R. § 3.385 during the Veteran's active duty service. In fact, the Veteran's service treatment records (STRs) dated from 1959 to 1963 during his service in the Air Force are negative for any complaint, treatment, or diagnosis of bilateral hearing loss disability under § 3.385. However, the Court has held that it is not required that a hearing loss disability by the standards of 38 C.F.R. § 3.385 be demonstrated during service, although a hearing loss disability by the standards of 38 C.F.R. § 3.385 must be currently present, and service connection is possible if such current hearing loss disability can be adequately linked to service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). See also 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). That is, a claimant may establish direct service connection for a hearing disability initially manifest years after separation from service on the basis of evidence showing that the current hearing loss is causally related to injury or disease suffered in service. Hensley v. Brown, 5 Vet. App. 155, 164 (1993). Therefore, the lack of evidence of bilateral hearing loss disability per § 3.385 or any hearing loss complaints for either ear during the Veteran's Air Force service is not fatal to the Veteran's hearing loss claim; rather, it is merely one factor to be considered. With regard to the favorable evidence, fourth, there is no post-service, intercurrent hazardous noise exposure or acoustic trauma to explain the Veteran's gradual development of his bilateral ear hearing loss in the years after his separation from his service in the Air Force from 1963 to the present. See 38 C.F.R. § 3.303(b). That is, no intercurrent occupational noise exposure in the years from 1963 to 2021 that caused the development of his hearing loss. There was also no familial history of hearing loss in the Veteran's family or recent or recurrent ear disease or head trauma. In particular, the Veteran has consistently advised VA examiners that he worked for Ford Motor Company at a factory for 30 years where he assembled headlights and taillights and dashboard components for Ford vehicles. After he assembled these parts of the vehicle, at that point the next step of the vehicle assembly was the noisy main production line. But he did not work on the noisy main production line during his entire 30 years of service for Ford Motor Company. As such, he was not required to wear hearing protection at his post-service Occupational Safety and Health Administration (OSHA) inspected work environment. There were no big machines, no compressors, and no other noise hazards in his post-service occupational duties as a civilian. Finally, the Veteran's intercurrent post-service recreational exposure to noise from power tools appears to have been minimal. There is no requirement that all factual questions be resolved by reliance on direct, rather than circumstantial, evidence. Although an etiological relationship has not been demonstrated through competent medical opinion evidence, the absence of a "valid medical opinion" is not an absolute bar to service connection. Davidson, 581 F.3d at 1316. With regard to the favorable evidence, fifth, post-service, it is significant to the Board's present adjudication of bilateral hearing loss that the AOJ in a November 2019 rating decision already granted the Veteran service connection for tinnitus. This award was based on the same confirmed in-service hazardous noise exposure discussed above for the Veteran in the Air Force from 1959 to 1963. In fact, an October 2018 VA addendum opinion from a VA audiologist proffered a favorable nexus opinion for tinnitus. Conversely, with regard to the negative evidence, the Board acknowledges the unfavorable medical opinions of record: see e.g., September 2014 VA audiology examination; October 2018 VA addendum opinion by same VA audiologist; April 2020 VA addendum opinion by separate VA audiologist; and April 2021 VA audiology examination and opinion by VA audiologist with an August 2021 VA addendum opinion. These VA audiology opinions considered the following findings against the award of service connection: the Veteran's in-service audiograms did not reveal hearing loss disability as defined by VA under the strict requirements of 38 C.F.R. § 3.385; there were no significant threshold shifts for his puretone thresholds during active duty from 1959 to 1963; the Veteran was inconsistent in describing when his first hearing loss symptoms began post-service; and the high-frequency hearing loss displayed by the Veteran post-service is more consistent with presbycusis (age-related hearing loss) than with noise-induced hearing loss. However, although these unfavorable VA audiology opinions provide probative evidence against the hearing loss claim, they all contain one primary flaw: the VA medical opinions dated from 2014 to 2021 failed to convert the findings for pure tone thresholds contained in the Veteran's STR audiograms. That is, for service department audiometric test results dated prior to November 1, 1967, the VA audiology examiners failed to convert the American Standards Association (ASA) readings to the more scientific and accurate International Standards Organization (ISO)-American National Standards Institute (ANSI) readings, which are utilized in current times. The Court has held that a medical examiner's conclusions were of "questionable probative value" when the examiner failed to consider certain relevant information. Mariano v. Principi, 17, Vet. App. 305, 312 (2003). In fact, the Board in its most recent July 2021 Board remand specifically directed the VA audiology examiner to discuss conversion of STR audiograms to ISO-ANSI standards before any comparisons were made between the STR audiology findings. See Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010) (substantial compliance with a Board remand order, but not strict compliance, is required). The Board should not remand for any more additional development when the present record is sufficient to grant service connection. Andrews (David) v. McDonough, 34 Vet. App. 216 (2021). Stated another way, VA may not order additional development for the sole purpose of obtaining evidence unfavorable to a claimant. Mariano v. Principi, 17 Vet. App. 305, 312 (2003). See also 38 C.F.R. § 3.304(c) (the development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination). The Federal Circuit Court recently emphasized that under 38 U.S.C. § 5107(b) and under its previous holding of Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001), the claimant is entitled to the benefit of the doubt when the evidence is in "approximate" balancei.e., "nearly equal"but does not require that the evidence be in exact equipoise. Lynch, 999 F.3d at 1394. In making this favorable determination for the Veteran, the Board has considered that evidence is rarely neat and tidy. Therefore, it is expected that the Board will at times have to construct a complete narrative by filling in gaps with inferences and common sense. There is no requirement that all factual questions be resolved by reliance on direct, rather than circumstantial, evidence. The fact finding of the Board in this case is entitled to deference and is not clearly erroneous. To the extent that the Board made inferences and considered circumstantial evidence in its analysis of the evidence, this type of reasoning is well within the discretion of a fact finder. Although another fact finder may have declined to make the same inference, that does not mean that the Board in the present case is clearly erroneous. Bastien v. Shinseki, 599 F.3d 1301, 1306 (Fed. Cir. 2010) ("The evaluation and weighing of evidence and the drawing of appropriate inferences from it are factual determinations committed to the discretion of the fact finder."). (CONTINUED ON NEXT PAGE) Accordingly, resolving doubt in the Veteran's favor, service connection for bilateral hearing loss disability is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.S. Rubin, 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.