Citation Nr: 21069470 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 17-35 247 DATE: November 18, 2021 REMANDED Service connection for hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from September 1965 to September 1968. The Veteran testified before the undersigned Veterans Law Judge during a January 2021 hearing and a transcript is of record. This matter is on appeal from a June 2015 rating decision. In a March 2021 decision, the Board remanded the issue listed above to afford the Veteran an additional VA medical opinion. The Board will discuss the compliance of the Agency of Original Jurisdiction (AOJ) with its instructions below. The Board also remanded a claim for service connection for peripheral neuropathy of the lower extremities. In an August 2021 rating decision, the AOJ granted service connection for axonal neuropathy of multiple nerves of the right and left lower extremities. This issue is no longer before the Board. 1. Service connection for hearing loss is remanded. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran was most recently afforded a VA examination in May 2021. The clinician opined that the Veteran's bilateral hearing loss was not caused by or a result of noise exposure in the military because his hearing was normal at the time of separation from active duty. This is not the correct standard. The absence of evidence of a hearing loss disability in service is not fatal to a veteran's claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection. See Hensley v. Brown, 5 Vet. App. 155 (1993). Moreover, in its remand instructions, the Board explicitly instructed the clinician that "the absence of hearing loss in service cannot serve as the sole basis for a negative finding." The VA opinion is therefore inadequate and does not provide a sufficient basis upon which to adjudicate the claim. Because the Veteran's entrance examination was prior to January 1, 1967, the clinician should assume that the hearing thresholds were recorded using American Standards Association (ASA) units. Because the Veteran's separation examination was between January 1, 1967 and December 31, 1970 and it is unclear which standards were used in that examination, the clinician should consider the hearing thresholds under both ASA and International Standards Organization-American National Standards Institute (ISO-ANSI) units, relying on the measurements most favorable to the Veteran's appeal. In addition, the clinician found that the Veteran's right ear hearing loss existed prior to his active duty service because his entrance examination showed "a moderate hearing loss at 6000 Hz in the right ear when corrected from ASA to ISO." Every veteran is presumed to have been in sound condition at entry into service except as to defects, infirmities, or disabilities noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are to be considered as "noted." 38 C.F.R. § 3.304. A history of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304(b)(1). Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of those frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2021). When hearing loss as listed on a veteran's entrance examination does not meet VA's definition of a disability under 38 C.F.R. § 3.385, a preexisting disability is not established and the presumption of soundness continues to apply. McKinney v. McDonald, 28 Vet. App. 15, 21 (2016). Because hearing loss at 6000 Hertz cannot constitute a disability as defined above, the clinician erred by finding that the Veteran's right ear hearing loss existed prior to service. For both of these reasons, a remand for an additional VA medical opinion is again necessary. The matters are REMANDED for the following action: 1. Arrange for an opinion by an appropriate clinician who has not previously examined the Veteran for the purpose of determining the etiology of the Veteran's hearing loss. The entire claims file and a copy of this remand must be made available to the clinician for review. A new physical or telehealth examination is only required if deemed necessary by the clinician. The clinician must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hearing loss began during active service, is related to an incident of service, or began within one year after discharge from active service. Although an independent review of the claims file is required, the Board calls the clinician's attention to the following: a. The Veteran's statement in his June 2014 claim that his hearing loss had its onset in 1967. b. The Veteran's statements in his July 2015 Notice of Disagreement (NOD) regarding his in-service noise exposure. c. The Veteran's statements in his June 2017 substantive appeal (VA Form 9) regarding his in-service noise exposure. d. The Veteran's testimony during a January 2021 hearing regarding the onset and continuity of his hearing loss symptoms, as well as his representative's contentions during that hearing regarding the variability between the Veteran's entrance and separation examinations. e. The Veteran's January 2021 statements regarding his in-service noise exposure. The clinician is advised that, because the Veteran engaged in combat during his active duty service and attributes his disability in part to noise exposure during that combat, his lay statements are sufficient to establish the incurrence or aggravation of his hearing loss if they are credible and consistent with the circumstances, conditions, or hardships of his service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service. See 38 U.S.C. § 1154(b) (2012). The clinician is further advised that, notwithstanding the May 2021 VA clinician's opinion, the hearing loss at 6000 Hertz in the Veteran's right ear noted on his August 1965 entrance examination report does not meet VA's definition of disabling hearing loss and cannot establish that the Veteran's hearing loss existed prior to his active duty service. See 38 C.F.R. § 3.385 (2021). Because the Veteran's entrance examination was prior to January 1, 1967, the clinician should assume that the hearing thresholds were recorded using American Standards Association (ASA) units. Because the Veteran's separation examination was between January 1, 1967 and December 31, 1970 and it is unclear which standards were used in that examination, the clinician should consider the hearing thresholds under both ASA and International Standards Organization-American National Standards Institute (ISO-ANSI) units, relying on the measurements most favorable to the Veteran's appeal. The rationale for any opinion expressed should be provided. Note that an absence of hearing loss in service cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the clinician should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 2. Ensure that the directives specified in this remand have been implemented. If they have not, appropriate corrective action must be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). The AOJ is advised that a medical opinion that relies on an absence of hearing loss in service is inadequate to fulfill these directives. 3. Then, readjudicate the claim. If the decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ryan Frank, 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.