Citation Nr: 21069712 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 19-33 575 DATE: November 19, 2021 ORDER Service connection for bilateral hearing loss is granted. FINDINGS OF FACT 1. In a December 2010 rating decision, the Regional Office (RO) denied the Veteran's claims for tinnitus and bilateral hearing loss. The Veteran did not appeal his claims and the rating decision became final. 2. In August 2018, the Veteran filed to reopen his claims and submitted new and material evidence that relates to unestablished facts necessary to substantiate his claims for service connection for tinnitus and bilateral hearing loss. The submitted evidence was not cumulative and redundant. 3. Based on the Veteran's military occupational specialty, the Veteran was more likely than not exposed to hazardous noise in service. 2. The evidence is in equipoise as to whether the Veteran's bilateral hearing loss was caused by or was proximately caused by his in-service hazardous noise exposure. 3. Resolving reasonable doubt in favor of the Veteran, the evidence is sufficient to show that the Veteran's current bilateral hearing loss is causally related to his in-service hazardous noise exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), (c), 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army, during the Vietnam era from February 10, 1966 to February 7, 1969, under honorable conditions. His military occupational specialty was that of an office machine repairman. The agency of original jurisdiction (AOJ) conceded this military occupational specialty has a high probability of hazardous noise exposure. See Statement of the Case (SOC) dated October 10, 2019. On August 17, 2010, the Department of Veterans Affairs (VA) received a VA Form 21-526 application for compensation or pension seeking service connection for bilateral hearing loss and tinnitus from acoustic trauma. A compensation and pension examination was conducted on October 15, 2010, including an audiological examination. On December 16, 2010, the Veteran was notified of the VA's decision denying all of the Veteran's claims. On August 27, 2018, the VA received a form VA 21-526EZ from the Veteran requesting to reopen his claims for bilateral hearing loss and tinnitus. The VA also received a form VA 21-4138, statement in support of the Veteran's claims which contained new and material evidence including the Army's formal recognition that the Veteran's occupational specialty involved routine exposure to hazardous noise. A second compensation and pension examination was conducted on September 20, 2018. Again, an audiological examination was performed. On September 26, 2018, the Veteran was notified of the VA's decision to grant service connection for tinnitus based on his in service exposure to hazardous noise, but deny service connection for bilateral hearing loss. On October 12, 2018, the VA received a form VA 21-4138, statement requesting reconsideration of the denial of his claim for bilateral hearing loss. On November 1, 2018, the VA notified the Veteran of its decision denying his claim for service connection for bilateral hearing loss. On March 28, 2019, the VA received the Veteran's form VA 20-0996 requesting a higher level of review. On April 10, 2019, the VA notified the Veteran that his case was not eligible for this process. As a result, the Veteran filed a notice of disagreement which was received by the VA on July 25, 2019. The AOJ filed its Statement of the Case on October 30, 2019. The Veteran then filed a VA Form 9 seeking service connection for bilateral hearing loss, which was received by the Board of Veterans' Appeals (the Board) on November 12, 2019. New and Material Evidence Prior unappealed decisions of the RO are final. 38 U.S.C. § 7105 (c); 38 C.F.R. § 20.1103. The Board does not have jurisdiction to consider a claim that has become final before it determines that new and material evidence has been presented, irrespective of what the regional office may have determined with respect to the new and material evidence. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). If, however, new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA shall reopen the claim and review the former disposition of the claim. Manio v. Derwinski, 1 Vet. App. 145 (1991). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156 (a). Material evidence means existing evidence that, by itself or considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. Id. New and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening thereof; the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 11720 (2010). The claims for service connection for tinnitus and bilateral hearing loss were initially considered and denied by the RO in the December 2010 rating decision. The Veteran was notified of this decision and his appellate rights. The Veteran did not file a notice of disagreement. Thus, the rating decision became final. In August of 2018, the Veteran filed an application to reopen his claims. He submitted a statement in support of his claim that identified new and material evidence not previously submitted to the decision makers. First, the Veteran identified the Army has recognized his occupational specialty as one of the military occupations involving routine exposure to hazardous noise. Second, he submitted a National Institute on Deafness and Other Communication Disorders' article finding hearing loss can occur gradually over a long period of time after exposure to loud noise. Third, he pointed out that the military failed to perform audiogram testing in his separation examination and identified an Institute of Medicine article concluding in the absence of audiogram testing at the beginning and end of military service, it is impossible to determine with certainty how much of an individual's hearing loss was acquired during military service. 1. As a result, the Board finds that the Veteran submitted new and material evidence since the December 2010 decision denying service connection for tinnitus and bilateral hearing loss. The evidence submitted is outlined above and relates to unestablished facts necessary to substantiate the Veteran's claims - most notably in service exposure to hazardous noise. The submitted evidence was not cumulative and redundant. Furthermore, the AOJ substantially relied on this new and material evidence to grant service connection for tinnitus. Service Connection for Bilateral Hearing Loss is Granted Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for a disability, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). For purposes of analysis, the AOJ conceded both current hearing loss which meets the criteria for a disability under 38 C.F.R. § 3.385, and in-service noise exposure due to the Veteran's active-duty service as an office machine repairman, an occupation with a high probability of hazardous noise exposure. See SOC dated October 30, 2019. However, service connection was denied because a causal relationship between the two was not established, and the current disability did not manifest itself within one year of discharge. In the 1960s, the military changed its standard for reporting audiograms. Prior to 1967, military audiometric results were reported in American Standards Association (ASA) units; VA used ASA units prior to July 1966. However, in July 1966, VA adopted International Standards Organization American National Standards Institute (ISO-ANSI) standards. Historically, the Board has considered that since the military adopted ISO-ANSI standards as of November 1, 1967, any military audiograms conducted prior to November 1967 would be converted from ASA to ISO-ANSI units. However, recent historical research has revealed that the conversion date of November 1, 1967, may not have been consistent among all military branches. Therefore, unless it can be determined by looking at the audiogram whether it was conducted using ASA or ISO-ANSI standards, the Board's policy is to assume that service department audiometric test results prior to January 1, 1967, were reported in ASA standards, and that audiometric test results since December 31, 1970, were reported in ISO-ANSI standards. For the period between January 1, 1967 and December 31, 1970, the Board will consider the data under both ASA and ISO-ANSI standards unless the standard used is clearly indicated. In converting from ASA to ISO-ANSI, the following conversions are used: HERTZ 500 1000 2000 3000 4000 6000 ADD 15 10 10 10 5 5 Here, the Veteran entered active-duty service on February 10, 1966. An enlistment examination was conducted on November 9, 1965. The enlistment examination does not note whether the ASA or ISO-ANSI standard was used for testing the Veteran's hearing. Audiological evaluation showed pure tone thresholds, in decibels, as follows, with the conversion from ASA to ISO-ANSI standards noted in parentheses: HERTZ 500 1000 2000 3000 4000 6000 RIGHT 0 (15) -5 (5) -10 (0) 10 (20) 0 (5) 0 (5) LEFT 5 (20) -5 (5) -5 (5) 10 (20) 15 (20) 25 (30) Under 38 C.F.R. § 3.385, impaired hearing will be considered a disability for purposes of laws administered by VA when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 400 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 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. In the November 9, 1965 entrance examination, the Veteran's hearing was found to have some deficiencies, but the decibel deficiencies recorded at enlistment did not constitute hearing loss as defined by 38 C.F.R. § 3.385. Further, occasional ear infections in the left ear were also noted in the examination report. However, none of these conditions were severe enough to disqualify the Veteran from active-duty service. As such, the Veteran was found qualified for induction. Hearing loss is a chronic disease, and service connection may be established based on a continuity of symptomatology. 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Furthermore, a veteran is presumed to be in sound condition when examined and accepted into the service except for defects or disorders noted when examined and accepted for service. 38 U.S.C. §§ 1111, 1137. The Veteran served on active duty for approximately three years. During service, the Veteran service treatment records (STRs) do not indicate that the Veteran sought medical care or otherwise complained of hearing related issues. The Veteran's separation examination whispered voice testing showed that his hearing was 15 and 15 for both ears, and the Veteran did not present any medical or lay evidence covering the approximately forty years since his discharge establishing continuity of symptomatology for bilateral hearing loss. Service connection may also 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). Here, the Veteran filed an initial claim for compensation and pension on August 17, 2010, seeking service connection for bilateral hearing loss and tinnitus from acoustic trauma. Although initially denied, the Veteran was ultimately granted service connection for tinnitus. In the C&P examination conducted on September 20, 2018, the VA examiner found the Veteran was exposed to hazardous noise during service, the onset of the Veteran's tinnitus was in service, and excessive noise exposure is known to cause tinnitus. Therefore, the examiner concluded the Veteran's tinnitus was at least as likely as not a result of military noise exposure. However, the examiner found with respect to the Veteran's bilateral hearing loss that it was less likely than not related to the Veteran's military noise exposure. He reasoned, because there was no significant permanent shift in hearing thresholds in service, no complaints or treatment for hearing decrease in service or at separation, and no evidence of permanent auditory damage, the evidence was against finding a nexus in this case. The Board acknowledges that the lack of any evidence that the Veteran exhibited hearing loss during service is not fatal to his claim. The laws and regulations do not require in-service complaints of or treatment for hearing loss in order to establish service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Instead, as noted by the Court: where the regulatory threshold requirements for hearing disability are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post- service test results meeting the criteria of 38 C.F.R. § 3.385.... For example, if the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflecting an upward shift in tested thresholds in service, though still not meeting the requirements for "disability" under 38 C.F.R. § 3.385, and (b) post-service audiometric testing produces findings meeting the requirements of 38 C.F.R. § 3.385, rating authorities must consider whether there is a medically sound basis to attribute the post-service findings to the injury in service, or whether they are more properly attributable to intercurrent causes. Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (quoting from a brief of the VA Secretary). On the November 9, 1965 entrance examination, the Veteran's hearing was found to have some deficiencies, but the decibel deficiencies recorded at enlistment did not constitute hearing loss as defined by 38 C.F.R. § 3.385. The Veteran was then exposed to hazardous noise in-service and developed tinnitus in service, which tends to indicate the Veteran did suffer an injury that adversely affected his auditory system. A review of the Veteran's claims file reflects that whispered voice testing was conducted in February 1969 separation examination, instead of audiological testing that might have detected any in-service shifts in thresholds. The whispered test showed that his hearing was 15 and 15 for both ears. The VA conceded exposure to hazardous noise which caused tinnitus, they did not concede acoustic trauma. Therefore, to prevail on a claim for bilateral hearing loss, the Veteran must prove a causal relationship between his present hearing loss and his in-service exposure to hazardous noise. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). While the whispered voice test is not a valid assessment of hearing at the time of entrance or discharge, this was the customary test used during that period. However, this type of testing is not probative of the issue before the Board concerning whether the Veteran's in-service noise exposure is causally related to his hearing loss. The whisper test is an unreliable source for determining whether the Veteran had any in-service shifts in thresholds hearing and it is not totally dispositive of substantiating hearing loss that the Veteran may have sustained. The Veteran submitted private audiological testing results and an opinion from a private audiologist. The records indicate the Veteran has suffered from hearing loss for over 15 years. The report was dated July 21, 2005, indicating his hearing loss may have existed as early as 1995. However, the report also indicates in 1995 the Veteran was already wearing hearing aids. The Veterans form VA 21-4138 received on August 27, 2010, indicates the Veteran first needed hearing aids in 1988 when he was 42 years old. The private audiologist did not provide an opinion concerning whether the Veteran's in service exposure to hazardous noise was the proximate cause of the Veteran's current hearing loss. The Veteran argues frequency specific audiometric test results were not taken at his separation examination from the U.S. Army. He cites an article from the Institute of Medicine finding the "evidence sufficient to conclude that in the absence of audiograms obtained at the beginning and end of military service, it is difficult to impossible to determine with certainty how much of an individual's hearing loss was acquired during military service." Two different C&P examinations were conducted with audiological testing. The first conducted on October 26, 2010, found moderate to severe sensorineural hearing loss in the right ear and severe sensorineural hearing loss in the left ear. As well as poor word recognition scores. However, the examiner found it as likely as not that the Veteran's hearing was normal upon discharge and the Veteran was not exposed to loud noise while on active duty. Since this C&P examination was conducted, the VA conceded the Veteran was exposed to hazardous noise while on active duty and found service connection for tinnitus as a result of excessive noise exposure. A second C&P examination was conducted on February 20, 2018. In that examination, the VA examiner found no significant permanent shift in hearing threshold beyond test variability from entrance to separation examinations. However, the VA examiner did not take into consideration that audiological testing was not done at the Veteran's separation examination. The examiner does acknowledge that noise exposure is conceded, but auditory damage and the relationship between such damage and hearing loss is not. He ultimately finds the evidence against a nexus and that the Veteran's current hearing loss is less likely than not related to noise exposure in service. The evidence against the claim includes two C&P examinations, each flawed in their reasoning based on facts not yet present at the time or not fully considered. First, neither VA examiner acknowledged or considered that audiological testing was not performed at the Veteran's separation examination. As such, it is impossible to discern whether the Veteran suffered a permanent shift in hearing from entrance to separation. Second, when the first C&P examination was conducted, the VA had not yet conceded both a current disability and exposure to hazardous noise in service. Third, the VA had not yet awarded service connection for tinnitus as a result of hazardous noise exposure in service when the C&P examinations were conducted. Therefore, both C&P examinations are of less probative value. The evidence in favor of the claim includes findings that the Veteran has a current hearing loss disability, was exposed to hazardous noise in service, and began to have hearing loss issues within ten years post service with no notable intervening causes other than a family history of hearing loss later in life. The VA determined the Veteran began to have hearing issues in service with his complaints of tinnitus. The VA awarded service connected for tinnitus as a result of hazardous noise exposure. Further, despite hearing deficiencies noted on his entrance examination, audiological testing was not performing during his separation examination rendering it now impossible to determine whether he suffered a permanent shift in hearing threshold from entrance to separation. When all the evidence is assembled, the VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert, 1 Vet. App. at 49. Given the Veteran's current diagnosis of bilateral hearing loss, his reports of declining hearing since service, and substantiated in-service noise exposure - it is as least as likely as not that the Veteran's condition is related to such exposure. (Continued on the next page) Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether there is a causal relationship between the Veteran's present hearing loss and his in-service exposure to hazardous noise. Accordingly, when reasonable doubt is resolved in favor of the Veteran, service connection for bilateral hearing loss is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Danette Mincey Veterans Law Judge Board of Veterans' Appeals 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.