Citation Nr: 21067705 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 17-31 939 DATE: November 5, 2021 ORDER Service connection for bilateral hearing loss is granted. FINDING OF FACT The Appellant's current bilateral sensorineural hearing loss, to include as due to otosclerosis, was incurred in or aggravated by active service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 101(24), 106, 1110, 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Appellant did not have any active duty periods, but he served on active duty for training (ACDUTRA) in the California Army National Guard from March 1961 until September 1961, as reflected in a DD Form 214. He also had additional periods of ACDUTRA and inactive duty for training (INACDUTRA) between January 1961 and January 1965, followed by a two-year obligation of service in the Army Reserve, as reflected in DD Forms 22 for his National Guard record. Service records further reflect that the Appellant was temporary disqualified from active Reserve status due to his hearing loss from August 1966 to February 1967. This matter came before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision. In September 2019, the Appellant testified at a Board hearing before the undersigned Veterans Law Judge. In November 2019, the Board remanded the matter for additional development, including verification of the Appellant's active duty, ACDUTRA, and INACDUTRA dates, which was completed and reflects the service status as noted above. It now returns for review. 1. Service connection for bilateral hearing loss The Appellant contends that his current bilateral hearing loss is due to loud noise exposure from rifles and other artillery weapons during his initial 6 months of training or boot camp in 1961 and for annual training from 1961 to 1965, including receiving an expert carbine rifle badge. He believes that this worsened his otosclerosis to result in hearing loss. He served in an artillery unit with a military occupational specialty of clerk typist. The Appellant was unaware of any otosclerosis prior to service, and it was not noted on his enlistment examination. He first noticed hearing loss in 1962 or 1963, and he began receiving treatment for hearing loss related to otosclerosis in December 1963, including multiple ear surgeries. He asserts that he was medically discharged from service due to hearing loss, and his doctor told him that he should be discharged because service would expose him to more acoustic trauma. The Appellant continued to receive treatment, including additional surgeries, hearing aids, and a left ear cochlear implant in 2016. See, e.g., September 2014 claim, March 2015 notice of disagreement and letter, April 2017 report of general information, September 2019 hearing and letter. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. Generally, service connection requires three elements: (1) 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 in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). For National Guard or Reserve service, service connection may only be granted for a disability resulting from disease or injury incurred or aggravated while on active duty for training (ACDUTRA or ADT), or for an injury incurred or aggravated during inactive duty training (INACDUTRA or IDT), but not for a disease during inactive duty training, except from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident. 38 U.S.C. §§ 101(24), 106; 38 C.F.R. § 3.6. ACDUTRA is, among other things, full-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c)(1). INACDUTRA is part-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. Id. Active service also includes authorized travel to or from such duty or service. 38 U.S.C. § 106(d); 38 C.F.R. § 3.6(e). Generally, a veteran is presumed to be in sound condition when examined and accepted into service except for defects or disorders that are noted when examined and accepted for service. 38 U.S.C. §§ 1111, 1137. Additionally, congenital or developmental defects are not diseases or injuries in the meaning of applicable legislation for disability compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9. However, service connection may be granted for diseases (but not defects) of congenital, developmental, or familial origin if the evidence as a whole shows that the manifestations of the disease in service constituted "aggravation" of the disease within the meaning of applicable VA regulations. VAOPGCPREC 82-90 (July 18, 1990); 38 C.F.R. §§ 3.303(c), 3.306. Although service connection cannot be granted for a congenital defect, service connection may be granted for additional disability that results from such a defect being subject to a superimposed disease or injury during active military service. VAOPGCPREC 82-90. In adjudicating such claims, reasonable doubt that exists because of an approximate balance of positive and negative evidence concerning any point will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The evidence establishes a current disability diagnosis of bilateral sensorineural hearing loss that meets the VA disability criteria, with pure tone thresholds of 40 decibels above at multiple levels from 500 to 4000 Hertz bilaterally. See 38 C.F.R. § 3.385. See, e.g., private audiometric evaluations in November 2013, November 2014, July 2016, and November 2018; and November 2020 VA examination. The evidence also establishes the in-service element, as the Appellant's service in an artillery unit is consistent with exposure to loud noise during periods of training. Although his specialty was a clerk typist, his DD Form 22 for his record of National Guard service reflects that he received qualifications of a sharpshooter rifle badge in April 1961 and an expert carbine caliber 30 M1 badge in May 1963. No audiometric evaluations were conducted for the Appellant's service. Instead, his December 1960 enlistment examination (shortly before entry into initial training in January 1961) and September 1961 examination for release from initial ACDUTRA or boot camp both noted 15 out of 15 on a whisper test. The Appellant denied noticing any ear troubles or running ears, although there was no specific option as to hearing loss, and physical examination for the ears was normal. The Appellant's treatment for hearing loss from otosclerosis began on December 13, 1963, as shown in an August 1965 letter from Dr. M. This was shortly after his ACDUTRA from December 7 to 8, 1963, as shown by a pay voucher summary from the Army National Guard, which also showed other periods of monthly and annual training from September 1961 through January 1965. The Appellant underwent his first of several ear surgeries on December 30, 1963, followed by another surgery in June 1964. In December 1964, shortly before his release from the Army National Guard in January 1965, followed by transfer to the Reserve, the Appellant completed a statement in lieu of medical examination, reporting that he was medically qualified for service at the time of his last examination in September 1961, but since that time he had been treated with a bilateral stapedectomy (ear surgeries) in 1963 and 1964. He considered himself medically able to perform his military duties at that time. There were no complaints of hearing loss or otosclerosis, and no treatment for either condition, during any period of active duty, ACDUTRA, or INACDUTRA, for National Guard or Reserve service. In his August 1965 letter, Dr. M stated that the Appellant had undergone multiple surgical procedures in attempt to restore his hearing, and at the time of the letter the Appellant's hearing was at a normal level for ordinary conversation in the right ear and had a 70 decibel hearing loss through speech frequencies in the left ear. He was contemplating a further surgical procedure for the left ear in September 1965. Dr. M included the results of an August 1965 audiometric evaluation conducted with ASA values (which must be converted to ISO values for comparison). Dr. M stated that "because of the precarious nature of his hearing problem with possibility of further aggravation by noise exposure," it was his opinion that "military service would offer considerable liability to the patient." Despite this opinion, an August 1965 service department memorandum found that the Appellant was physically qualified for active Reserve retention at that time. In a July 1966 letter, Dr. M stated that the Appellant had a left ear stapedectomy in May 1966, and he enclosed the pre-operative audiometric study. That April 1966 audiometric evaluation was conducted with ISO values and showed pure tone thresholds of more than 40 decibels in both ears at 4000 decibels, which met the VA disability criteria for bilateral hearing loss disability. Dr. M advised that the Appellant have "no summer training program or extensive physical activity for at least six months after surgery because of problems related to his otosclerosis." Shortly thereafter, a service department notation and memorandum in August 1966 stated that the Appellant was not qualified for retention in the Reserve due to his recent left ear surgery, and his condition was to be reviewed in six months. In October 1966, the Appellant requested to be transferred to the standby Reserve due to his hearing loss as shown in his doctor's letters. An October 1966 service department Order then states that he was temporarily medically or physically disqualified from Reserve status from August 23, 1966, through February 23, 1967. As summarized above, the Appellant's reports as to the nature and timing of his ear and hearing loss conditions and noticeable symptoms are competent concerning observable symptoms and what his doctors told him. His reports are also credible because they are generally consistent with the other available records during and since service. Although he is not competent to give an opinion as to the cause of his current hearing loss or any aggravation of a preexisting or congenital otosclerosis during service, there are positive and negative medical opinions. In addition to the letters from Dr. M in 1965 and 1966 as summarized above, the Appellant submitted letters in September 2019 and April 2020 from Dr. B, who stated that the Appellant had been treated by his clinic since 1969 and had hearing loss in both ears that was "partly attributable to otosclerosis." Dr. B noted that the Appellant was a member of the Army National Gard from 1961 to 1965 and was subjected to loud noise during that period. In the 2019 letter, Dr. B opined that the Appellant's current condition as at least as likely as not caused by his military service. In his 2020 letter, Dr. B clarified that neither the Appellant nor the National Guard were aware of his otosclerosis when he entered service, and his condition was discovered in 1963 while under the care of Dr. M, and opined that his hearing loss was aggravated by his loud noise exposure from 1961 to 1965. The evidence includes treatment records from Dr. B's clinic dated from July 1969 through November 2014. Audiometric evaluations as early as July 1969 showed pure tones of 40 decibels or more at the 2000 and 4000 Hertz levels in the right ear and 40 decibels or more at all levels in the left ear. The records note that the Appellant had additional surgeries in 1976 and 1984, consistent with other reports. In a March 2021 report and August 2021 addendum opinion, a VA ear disability examiner (a general practitioner medical doctor) also opined that the Appellant's current hearing loss was at least as likely as not incurred in or caused by service. The examiner noted a reported date of onset for otosclerosis of 1961, and that the Appellant stated that while enlisted in the National Guard, he was assigned to an artillery group and was exposed to frequent acoustic noise trauma. He was medically discharged due to his disruption in hearing and had been using hearing aids since his separation from service. His condition has progressed or worsened since onset, and he had a left ear cochlear implant in 2016. This examiner opined that it was at least as likely as not that the current right and left hearing loss was incurred in or caused by in-service injury, event, or illness. The rationale was that service records reflected that the Appellant exhibited "hearing loss due to non-congenital otosclerosis in December 1963." He had a subsequent bilateral stapedectomy in 1964 while he was in the Army National Guard, completed by Dr. M, with subsequent bilateral surgeries in attempts to restore hearing loss. The VA examiner noted the recent private opinion by Dr. B, an ear, nose, throat specialist, that linked the current hearing loss to military-related events. Therefore, the examiner opined that the Appellant's medical records support that any currently diagnosed condition(s) related to the claimed otosclerosis were at least as likely as not incurred in or caused by his verified periods of service in active duty training. This examiner explained that he found that otosclerosis did not represent a congenital defect or a disease because hearing impairment was not diagnosed on the enlistment examination; however, this was the wrong standard. In an August 2021 addendum, this VA examiner noted that otosclerosis was not discovered or treated until December 1963, but stated that there was conceded damage to the inner ear due to military-related activities and exposure to acoustic noise trauma. Therefore, there was a nexus between service and the otosclerosis. In contrast to the above opinions, a VA examiner in November 2020 (an audiologist) opined that it was less likely than not that the Appellant's current right or left hearing loss, including due to otosclerosis, was incurred in, caused by, or a result of military noise exposure, or was caused or aggravated by ACDUTRA noise exposure. This examiner stated that the Appellant's hearing was determined to be "grossly within normal limits" based on two whisper tests with a score of 15 out of 15 in December 1960 and September 1961, just prior to and after his first active service (noted as active duty but actually ACDUTRA). The examiner explained that a whisper test is not frequency-specific or performed at calibrated intensities, and therefore it is not sufficient to confirm, rule out, or quantify a threshold shift or hearing loss. No audiometric examinations were not performed during active duty (or ACDUTRA); therefore, there was no in-service active duty documentation of a threshold shift. The examiner noted that service records did document that Appellant exhibited hearing loss due to otosclerosis, which the examiners stated may be congenital, in December 1963 after his active service, and he had a bilateral stapedectomy in December 1964 while in the Army National Guard. The examiner explained that otosclerosis is most often caused when one of the bones of the middle ear (usually the stapes) becomes stuck in place and the resulting stiffness prevents the ossicular chain (bones of the middle ear) from conveying sound vibrations from the tympanic membrane to the cochlea, resulting in a hearing loss. The auditory nerve in the cochlea generally remains unaffected and the type of resulting hearing loss is conductive, not sensorineural. The overall effect of this stiffening of the ossicular chain is to dampen the intensity of acoustic energy reaching the cochlear nerves. The examiner noted that the Appellant has a sensorineural hearing loss in both ears. Therefore, it is unlikely that exposure to noise such as he experienced in-service caused the very severe hearing loss that he later experienced. This examiner noted that the Appellant had no noise exposure prior to service or after service, but he reported military noise exposure of gunfire and artillery fire during training exercises in the Army National Guard, while his duties as a clerk typist had a low probability of exposure to hazardous noise. The medical evidence is unclear as to whether the Appellant's otosclerosis was congenital and whether it was a defect or disease. As noted above, one examiner stated that the condition "may" be congenital, which is too speculative and could also imply that it "may not" be congenital. Another examiner stated that the condition was not congenital only because it was not noted on the Appellant's enlistment examination. However, that absence of notation goes toward whether the presumption of soundness applies, not whether it is congenital in nature. Nevertheless, the evidence is sufficient to determine that the Appellant's otosclerosis or any hearing loss related to such condition worsened in degree over the time range of his National Guard service, as clearly shown by ongoing treatment records since December 1963, as well as his denial of noticeable symptoms prior to 1963 and demonstrated symptoms since that time. Thus, to the extent the otosclerosis was congenital, it constituted a disease for VA purposes. Additionally, the Appellant's treating specialist throughout the 1960s, who specialized in ear and hearing loss disorders, stated in 1965 that his otosclerosis and hearing loss was in danger of worsening from further military noise exposure and in 1966 that he should avoid physical activities. This suggests a nexus The Appellant's more recent treating specialist stated in 2019 and 2020 that his current hearing loss was at least in part caused by otosclerosis, and it was as likely as not caused or aggravated by noise exposure during periods of training in service. Although the 2020 VA examiner stated that the otosclerosis "generally" results in conductive hearing loss, not sensorineural hearing loss, that leaves open the possibility of it resulting in sensorineural hearing loss. Furthermore, the Appellant's treating specialist is shown to have more expertise in the field of ear disease and hearing loss than that VA examiner who was an audiologist, and he stated that this Appellant's current condition was partly attributable to otosclerosis. Accordingly, the evidence is at least in relative equipoise as to whether the Appellant's current hearing loss is related to service. Therefore, reasonable doubt is resolved in his favor, and service connection is warranted. The appeal is granted. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Wheatley 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.