Citation Nr: 21067864 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 09-02 191 DATE: November 5, 2021 ORDER Entitlement to service connection for left ear hearing loss is granted. FINDING OF FACT Giving every reasonable doubt to the Veteran, his left ear hearing loss is related to service. CONCLUSION OF LAW The criteria for service connection for left ear hearing loss have been met. 38 U.S.C. §§ 1110, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1969 to April 1972. In April 2012, the Veteran testified before the undersigned Veterans Law Judge at a Board hearing at the above VARO; a transcript is of record. This claim was previously before the Board in February 2013, June 2015, and July 2017, at which time the Board remanded it for additional development. In a February 2019 decision, the Board denied entitlement to service connection for left ear hearing loss. The Veteran subsequently appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2021 Memorandum Decision, the Court vacated the Board's February 2019 decision, and remanded this case to the Board for readjudication. Entitlement to service connection for left ear hearing loss Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may 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). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection will also be presumed for certain chronic diseases, including other organic diseases of the nervous system, which include hearing loss, if manifest to a compensable degree within one year after discharge from service. See 38 C.F.R. §§ 3.307, 3.309. Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). In order for the presumption to apply, the claimant must be a veteran with 90 days of active, continuous service. 38 C.F.R. § 3.307(a)(1). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, or 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. Even if disabling loss is not demonstrated at separation, a veteran may establish service connection for a current hearing disability by submitting evidence that a current disability is causally related to service. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The Board initially acknowledges that the lack of any evidence showing the Veteran had bilateral hearing loss at separation from service is not fatal to his claim for service connection. The laws and regulations do not strictly require in-service complaint of, or treatment for, hearing loss in order to establish service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Instead, the Court of Appeals for Veterans Claims has held where there is no evidence of the veteran's claimed hearing disability until many years after separation from service, "[i]f evidence should sufficiently demonstrate a medical relationship between the veteran's in-service exposure to loud noise and his current disability, it would follow that the veteran incurred an injury in service...." Hensley, supra, (quoting Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992)). Therefore, the critical question is whether the veteran has current hearing loss disability which is causally related to service. The service treatment records (STRs) show that a July 1969 examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 5 0 0 0 0 At the March 1972 separation examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 25 0 0 n/a 10 The Veteran wrote in January 2009 that he was exposed to very loud noise during service when he was assigned to an infantry battalion. The Veteran had a VA examination in April 2009 at which he reported bilateral hearing loss since around 1972. He had difficulty understanding in the presence of noise, with the left ear worse, was exposed to artillery noise during service, and denied significant recreational exposure. The Veteran was exposed to noise at U.S. Steel from 1972 to 1998, but he worked primarily in an office environment. On the audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 15 10 0 35 40 Speech audiometry revealed speech recognition ability of 96 percent in the left ear. The examiner diagnosed the Veteran with left ear mild high frequency sensorineural hearing loss. She opined that it was less likely than not that the hearing loss was caused by or the result of military service because the hearing was normal at separation. Probative value cannot be given to this opinion because it is based entirely on the lack of hearing loss during service. See Hensley, 5 Vet. App. at 160. The Veteran later testified at the April 2012 Board hearing that during in-service training he was exposed to large guns without being provided hearing protection. His hearing had gotten gradually worse, and he had to "turn the volume up" on the television and ask people to repeat themselves a lot. The Veteran had another VA examination in March 2013. On the audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 15 10 10 35 45 Speech audiometry revealed speech recognition ability of 96 percent in the left ear. The examiner opined that the left ear sensorineural hearing loss was not at least as likely as not caused by or the result of an event in military service. The rationale was the review of the 2009 examination and that hearing loss was within normal limits when the Veteran left military service. It was also noted that the Veteran was in the military for two and a half years and participated in war games in Alaska. He worked in a steel mill for 42 years. Twenty-five of those years were around noise, and hearing protection was provided. Probative value cannot be given to this opinion because it is based entirely on the lack of hearing loss during service. See Hensley, 5 Vet. App. at 160. The Veteran had a VA examination in December 2016. On the audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 10 10 5 35 45 Speech audiometry revealed speech recognition ability of 96 percent in the left ear. The examiner opined that it was not at least as likely as not that the Veteran's hearing loss was caused by or was a result of an event in military service. She wrote that the STRs do not show a threshold shift during service and that hearing was found to be within normal limits at enlistment and discharge. It was noted that the Veteran had worked at U.S. Steel for 42 years, where he reported that ear protection used most, but not all, of the time. He also worked for six months at an airline, where hearing protection was required. The Veteran occasionally went hunting. In a December 2017 examination report addendum, the December 2016 VA examiner wrote that military noise exposure did not result in left ear hearing loss. It was noted that the Veteran's report of hearing loss in 1972 cannot be disputed, that the results of the audiogram at the separation examination show that left ear hearing loss was not present at that time, and that there was no threshold shift. In contrast, the right ear had a high frequency threshold shift during service. Furthermore, there was some degree of noise exposure in the Veteran's post-service occupation, which was taken into consideration. In the March 2021 memorandum decision, it was noted that the Board must make a factual finding in the first instance regarding whether there was a threshold shift in the Veteran's hearing during service. The Board now finds that there was a threshold shift in the Veteran's hearing at 500 Hertz during service. Therefore, probative value cannot be given to the December 2017 examiner's opinion because it was based on the assumption that there was no threshold shift in hearing loss during service. The record shows that there is a current hearing loss disability since the auditory threshold at 4000 Hertz is 40 or greater. See 38 C.F.R. § 3.385. Furthermore, there is continuity of hearing loss since service. Under 38 C.F.R. § 3.303(b), this is an alternative means of establishing the required nexus or linkage between current disability and service, as diseases of the nervous system are identified as chronic under 38 C.F.R. § 3.309(a). When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. § 3.102. As the evidence is at least in equipoise, service connection for left ear hearing loss is granted. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Scott Shoreman, 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.