Citation Nr: 21067181 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-31 455 DATE: November 3, 2021 ORDER Entitlement to service connection for right ear hearing loss is granted. Entitlement to service connection for left ear hearing loss is denied. FINDINGS OF FACT 1. The evidence is at least in equipoise that the Veteran's right ear hearing loss had its onset during active service. 2. It is less likely than not that the Veteran's left ear hearing loss was incurred in service, manifested itself to a compensable degree within one year from the date of discharge, or is otherwise etiologically related to his service, to include military noise exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss have been met. 38 U.S.C. § 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for left ear hearing loss have not been met. 38 U.S.C. § 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from August 1974 to August 1980. This matter comes before the Board of Veterans Appeals (Board) on appeal from a March 2016 decision by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded in May 2021 to obtain a new VA examination regarding the Veteran's claimed bilateral hearing loss. This development having been conducted; the Board may proceed with a decision. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection for Hearing Loss Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted on a presumptive basis for chronic diseases listed in § 3.309 under the following circumstances: (1) Where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Sensorineural hearing loss is considered an "organic disease of the nervous system," and so is covered by § 3.309. For the purposes of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies at 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 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. Even though disabling hearing loss is not demonstrated at separation, a veteran may, nevertheless, establish service connection for a current hearing disability by submitting evidence that a current disability is related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). The Veteran's in-service noise exposure has been conceded. The Veteran's enlistment physical examination in April 1974 noted that the Veteran underwent ear surgery at age 13, as did his entrance examination in August 1974. The Veteran's August 1974 examination includes two sets of audiometric results. Both results show normal hearing in the left ear. For the right ear, one set of results shows no hearing loss at 500 Hertz, hearing loss of 38 decibels at 1000 Hertz, 40 decibels at 2000 Hertz, 29 decibels at 3000 Hertz, and 35 decibels at 4000 Hertz. The other shows right ear hearing loss of 35 decibels at 500 Hertz and 1000 Hertz, 45 decibels at 2000 Hertz, and 35 decibels at 4000 Hertz; results for 3000 Hertz are not recorded. An audiological examination in September 1974 showed normal hearing in both ears. Examination in February 1975 showed normal hearing in the left ear and mild hearing loss in the right. Specifically, the right ear showed hearing loss of 30 decibels at 500 and 1000 Hertz, 40 decibels at 2000 and 3000 Hertz, and 35 decibels at 4000 Hertz in February 1975. Examination in November 1976 showed normal hearing in the left ear; the right ear showed hearing loss of 25 decibels at 500 Hertz, 35 decibels at 1000 Hertz, 40 decibels at 2000 and 3000 Hertz, and 45 decibels at 4000 Hertz. Examination in April 1978 showed normal hearing in the left ear; the right ear showed hearing loss of 30 decibels at 500 and 1000 Hertz, 40 decibels at 2000 and 3000 Hertz, and 35 decibels at 4000 Hertz. One examination in June 1980 showed normal hearing in the left ear; the right ear showed hearing loss of 30 decibels at 500 Hertz, 45 decibels at 1000 Hertz, 40 decibels at 2000 and 3000 Hertz, and 35 decibels at 4000 Hertz. A second examination in June 1980 showed normal hearing in the left ear; the right ear showed hearing loss of 25 decibels at 500 Hertz, 15 decibels at 1000 Hertz, 35 decibels at 2000 Hertz, and 30 decibels at 3000 Hertz and 4000 Hertz. Examination in August 1980 showed normal hearing in the left ear; the right ear showed hearing loss of 30 decibels at 500 Hertz, 35 decibels at 1000 Hertz, 40 decibels at 2000 Hertz, and 40 decibels at 4000 Hertz. Results for 3000 Hertz were not recorded. In November 1981, just over a year after separation, the Veteran was given a hearing test at a private otolaryngology clinic. The examination showed normal hearing in his left ear; the right ear showed hearing loss of 25 decibels at 500 Hertz, 40 decibels at 1000 and 2000 Hertz, and 45 decibels at 4000 Hertz. Results for 3000 Hertz were not recorded. In March 1982, following separation, the Veteran underwent a tympanoplasty to improve hearing in his right ear; the Veteran stated in a February 2021 letter that the surgery was unsuccessful. The Veteran's hearing was tested for the right ear only at two follow-up examinations. In April 1982, the Veteran's right ear showed hearing loss of 20 decibels at 500 Hertz, 10 decibels at 1000 Hertz, 25 decibels at 2000 Hertz, 25 decibels at 3000 Hertz, and 45 decibels at 4000 Hertz. In August 1982, the right ear showed hearing loss of 25 decibels at 500 Hertz, 30 decibels at 1000 Hertz, 25 decibels at 2000 Hertz, and 40 decibels at 4000 Hertz. Results for 3000 Hertz were not recorded. In February 2017, testing by a VA examiner showed hearing loss in both ears. The left ear showed hearing loss of 15 decibels at 500 Hertz, 20 decibels at 1000 Hertz, 70 decibels at 2000 Hertz and 3000 Hertz, and 65 decibels at 4000 Hertz. The right ear showed hearing loss of 20 decibels at 500 Hertz, 30 decibels at 1000 Hertz, 75 decibels at 2000 Hertz, 90 decibels at 3000 Hertz, and 105 decibels at 4000 Hertz. For VA purposes, the Veteran currently has a hearing loss disability in both ears. See 38 C.F.R. § 3.385. Right Ear It is well-documented in the Veteran's service treatment records (STRs) that he exhibited right ear hearing loss during active service. The question before the Board is whether this hearing loss had its onset (or was aggravated beyond its natural progression) during service, or whether it existed prior to service. Veterans are generally presumed to have been in sound condition at the time of enlistment, except as to defects, infirmities, or disorders noted at the time of examination, or where there is clear and unmistakable evidence that the injury or disease existed prior to service and was not aggravated by service. 38 U.S.C. § 1111. The Veteran's April 1974 examination noted a past ear surgery, but the examiner checked "no" in the section inquiring about a history of hearing trouble. The August 1974 examination did note hearing loss in the medical history, and specified that the Veteran's childhood ear surgery was to repair a hole in his eardrum. The Veteran stated at his February 2021 hearing and in a February 2021 letter that he had misremembered the purpose of his ear surgery when giving his medical history to the examiners; his sibling had later informed him the surgery was to place drainage tubes in his ear, and was unrelated to hearing problems. However, a November 1982 letter from an otologist at the clinic that performed the surgery contradicts this: [The Veteran] was first seen in our office on August 8, 1968... because of a loss of hearing on the right side. At that time, his examination revealed a posterior perforation of the right membrane tympanum with an ossicular gap. On November 4, 1968 a right tympanoplasty type III with an incus graft was done... Marked improvement in the hearing resulted from this. The Board finds this letter to be the most probative evidence regarding the purpose of the Veteran's pre-service ear surgery. The November 1982 letter was written 14 years after the surgery, by a physician who worked at the office that performed the operation and would have had access to relevant medical records. The letter describes the operation, the examination preceding it, and its outcome in detail. While the Board has no reason to doubt the Veteran's honesty in attempting to describe his medical history, his statements are based on his and his sibling's childhood memories over 50 years after the fact, and do not carry the same weight. The November 1982 letter also includes copies of audiograms from before and after the Veteran's November 1968 surgery. Both examinations show normal hearing in the left ear. The August 1968 examination shows right ear hearing loss of 15 decibels at 500 and 1000 Hertz, 10 decibels at 2000 Hertz, and 50 decibels at 4000 Hertz. The August 1968 examination shows hearing loss of 15 decibels at 500 and 1000 Hertz, 10 decibels at 2000 Hertz, and 50 decibels at 4000 Hertz. The November 1968 examination shows normal hearing in the right ear: loss of 5 decibels at 500 Hertz, no hearing loss at 1000 and 2000 Hertz, and 5 decibels at 4000 Hertz. Results for 3000 Hertz are not recorded for either examination. The May 2021 VA examination opined that the Veteran's right ear hearing loss existed prior to service and was not aggravated by service, citing "the entrance exam from 4/1/1974 showing right ear hearing loss" that "agree[s] with all other exams in the claims file." The May 2021 examiner found the September 1974 examination, showing normal hearing in the right ear, to be an unreliable outlier, and found no significant worsening of the Veteran's right ear hearing during service when that examination was excluded. While the May 2021 examiner misstated the date of the prior audiological examinationthe only in-service audiogram results prior to September 1974 are from August 1974, not April 1974they accurately described the two audiograms from that examination. The Board sees the logic in the May 2021 opinion, but ultimately must conclude that the evidence is in equipoise as to whether the Veteran's right ear hearing loss had its onset during service. There are problems with the August 1974 audiograms that make the Board hesitant to rely upon them to the exclusion of the September 1974 audiogram. The results of the two August 1974 audiograms are not consistent with each other; there is a 35-decibel discrepancy at 500 Hertz, and only one audiogram includes results for 3000 Hertz. There is no note explaining why two hearing tests were conducted so close together, which was conducted first, or explaining the differences between them. There is nothing to indicate which set of results is more reliable. The May 2021 examiner would likely say that the test showing 35 decibels of hearing loss at 500 Hertz is more reliable than the one showing 0but the Board cannot simply assume that every examination result favorable to the Veteran is an error, while accepting any results that work against him. The November 1982 letter from the Veteran's private otologist indicates that the Veteran's right ear had normal hearing following surgeryand that, even prior to surgery, the Veteran's right ear condition only caused significant hearing loss at a frequency of 4000 Hertz. The letter states that the Veteran "noticed further difficulty with his hearing on the right side... after exposure to loud sounds [during service]," which is consistent with the Veteran's later testimony. The discrepancy between the September 1974 audiogram and subsequent audiograms is also consistent with testimony given during the Veteran's February 2021 hearing; the Veteran testified that he had "good hearing" during his first few weeks of service, but described an incident immediately after boot camp where his ears "didn't pop" after a flight. He testified that his ears had caused him problems during flights ever since that incident, and that his hearing "considerably" worsened over the course of the next year. Due to the above, the Board finds that the September 1974 audiogram cannot be rejected. The evidence is at least in equipoise that the Veteran did not have a right ear hearing disability when he entered active service, and that his current right ear hearing disability had its onset during active service. Entitlement to service connection for right ear hearing loss is granted. Left Ear The results of audiological testing for the Veteran's left ear are much more straightforward; the Veteran exhibited normal hearing in his left ear prior to service, throughout service, and for at least one year following separation. The first audiogram of record showing left ear hearing loss meeting VA's disability threshold is from the February 2016 VA examination, which shows 20 decibels hearing loss at 500 Hertz, 20 decibels at 1000 Hertz, 65 decibels at 2000 Hertz, 70 decibels at 3000 Hertz, and 65 decibels at 4000 Hertz. The Board remanded this matter in May 2021 to obtain a new examination regarding the etiology of the Veteran's hearing loss. The examiner was asked to address whether the Veteran's hearing loss was caused or aggravated by in-service noise exposure, whether it was caused or aggravated by his service-connected tinnitus, and to explain the cause of his hearing loss if it was unrelated to service. The May 2021 examiner answered all the Board's questions in detail, giving a thorough opinion that cited both medical literature and evidence in the claims file. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The May 2021 examiner found that the Veteran's left ear hearing loss was less likely than not directly related to service, citing normal hearing tests at separation and a year after. The examiner also cited medical literature finding that "the most pronounced effects of a given noise exposure on pure-tone thresholds are measurable immediately following the exposure," "a prolonged delay in the onset of noise-induced hearing loss is unlikely," and there was insufficient evidence to suggest that noise exposure makes a person's ears more susceptible to future damage. The examiner also found that the Veteran's left ear hearing loss was less likely than not caused or aggravated by tinnitus, stating thatwhile tinnitus could be a symptom of hearing lossthere was no evidence in the medical literature suggesting that tinnitus could cause or aggravate hearing loss. The May 2021 examiner concluded that the Veteran's current hearing loss was more likely than not related to his advanced age, with civilian noise exposure possibly contributing. The Board finds the examiner's reasoning to be sound, and well-supported by evidence; the opinion is therefore given probative weight. Continued on the next page The preponderance of the evidence is against finding that the Veteran's left ear hearing loss is related to an in-service disease, injury, or event. The Veteran's left ear hearing loss had its onset more than one year after separation, and so does not warrant presumptive service connection. The benefit-of-the-doubt rule does not apply, and the Veteran's claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shermila Sundquist 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.