Citation Nr: 21070659
Decision Date: 11/24/21	Archive Date: 11/24/21

DOCKET NO. 17-20 290
DATE: November 24, 2021

ORDER

Entitlement to service connection for right ear hearing loss is denied.

Entitlement to service connection for left ear hearing loss is granted.

REMANDED

Entitlement to service connection for rheumatoid arthritis is remanded.

FINDINGS OF FACT

1. The Veteran did not demonstrate right ear hearing loss during service or during the presumptive chronic period thereafter, nor has his current hearing loss been shown to be related to his service.

2. The Veteran demonstrated left ear hearing loss for VA purposes during his time in the Reserves.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1154(a), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385.

2. The criteria for entitlement to service connection for left ear hearing loss have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1154(a), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served honorably in the United States Navy from October 1966 to June 1967

In May 2016, the Veteran filed a notice of disagreement (NOD) with both the increased rating awarded and its effective date. While that NOD was pending, the Veteran passed away in May 2019. In July 2020, the Veteran's surviving daughter was recognized as the lawful substitute for his claim as she provided proof that she incurred expenses related to the veterans last sickness or burial.

SERVICE CONNECTION

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). To establish a right to compensation for a present disability, a Veteran 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 - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).

1. Entitlement to service connection for right ear hearing loss

2. Entitlement to service connection for left ear hearing loss

Certain chronic diseases, such as sensorineural hearing loss, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Continuity of symptomatology may also provide a basis for a grant of service connection for those diseases defined as "chronic" by VA. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d).

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 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. The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Id.; Hensley v. Brown, 5 Vet. App. 155, 157 (1993); McKinney v. McDonald, 28 Vet. App. 15, 24-5 (2016).

The absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for a hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). Hensley, 5 Vet. App. at 159.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, any reasonable doubt is resolved in favor of the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.

Here, the Board notes the Regional Office has already conceded the Veteran's in-service exposure to noise trauma. See May 2016 rating decision (granting service connection for tinnitus based on such exposure). Accordingly, in-service noise trauma is established. 38 U.S.C. § 1154 (a). The Board further notes that, at the time of his death, the Veteran had a current level of hearing loss meeting the disability requirements outlined above. See May 2016 VA examination (showing severe hearing loss). 

The Board notes both separation and entrance audiology reports show hearing within normal limits. See service treatment records (STRs) from June 1966 and June 1967.

The Board acknowledges, however, that an examination from April 1970 indicates hearing within normal limits in the right ear but does reflect hearing loss for VA purposes in the left ear. Specifically, the April 1970 VA audiogram shows Puretone thresholds of 30, 15, 15, and 20 decibels in the right ear, at the test frequencies 500, 1000, 2000, and 3000 Hz. Puretone thresholds for the left ear at those same frequencies were 30, 30, 30, and 35 decibels. Further, the Board notes that this is while the Veteran was in the Reserves in a period of ACDUTRA. See DD 214. 

Prior to his death, the Veteran underwent a May 2016 VA examination for his hearing loss. He was found to have significant hearing loss in both ears. However, the examiner opined it was less likely than not his hearing loss was related to his service. They noted that his enlistment exam from June 1966 indicated normal hearing in the right ear and left ear, and his separation physical from June 1967 also noted normal hearing in bilateral ears with no change when comparing the two.

Based upon the foregoing, the Board finds the preponderance of the evidence supports service connection for the left ear, but not the right ear. While the Veteran was still in the Reserves, the April 1970 examination showed hearing loss in the left ear meeting VA requirements for hearing loss. Therefore, an etiology is established as it had its onset during service. 38 C.F.R. §§ 3.307 (a)(3). Though the Board acknowledges the negative etiology opinion given by the May 2016, it seemingly failed to consider his Reserve status relative to the April 1970 record. 

Regarding the right ear, however, service connection is not warranted. There is no indication, unlike the left ear, that his right ear hearing loss began during service. His audiometric readings during service were all within normal limits, and no significant threshold shift was noted. Additionally, as discussed above, the May 2016 examiner provided a negative etiology opinion. Distinct from the left ear, there is no contrary evidence for the right ear.  Therefore, there is no medical nexus linking the Veteran's right ear hearing loss to service. There is also no medical evidence suggesting that hearing loss for VA purposes was diagnosed within the one-year presumptive period after service to support application of the chronic presumption. 38 C.F.R. §§ 3.307, 3.309.

REASON FOR REMAND

1. Entitlement to service connection for rheumatoid arthritis

In an April 2016, the Veteran submitted a lay statement describing how he was discharged from the military because of his arthritis. He stated he was on drill with the reserves when he became ill, and he couldn't get out of bed. He began receiving treatments shortly thereafter. In an August 2016 statement, the Veteran stated he was treated in basic training for issues which he believes were precursors to the rheumatoid arthritis. He couldn't move because his joints hurt, and he had to soak. The doctors reportedly told him at the time that they did not know what was going on and discharged him. He then went on Reserve and was on a drill weekend when he was treated and discharged due to arthritis. He reported receiving treatment since then.

According to a May 2018 private medical record from Dr. C.B, the Veteran had severe disabling rheumatoid arthritis when he entered the military which worsened while he was in the military.

As was discussed with the hearing loss above, the RO appears to have not considered the Veterans reserve service lasting until 1970. Notably, they do not address the April 1970 military records indicating the Veteran was found to be not physically qualified for service and was consequently discharged. 

Additionally, on the other side of the spectrum, the Board notes the private medical opinion of Dr. C.B. who indicated the Veteran's rheumatoid arthritis may have indeed pre-dated service.

Given all of this, the Board unfortunately finds that a remand is required in order to synthesize the information and provide an opinion as to whether, considering the information just discussed, the Veteran's rheumatoid arthritis is etiologically related to his service or was aggravated by such service.

Accordingly, the case is REMANDED for the following actions:

1. Obtain any outstanding records of pertinent medical treatment from VA or private health care providers.

2. After the above records request has been completed, to the extent possible, obtain a VA addendum opinion from an appropriate examiner to determine the nature and etiology of the Veteran's rheumatoid arthritis. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. All indicated tests should be accomplished and all clinical findings reported in detail.

Based a review of the record, the examiner must provide the following opinions:

a) Is there clear and unmistakable (obvious, manifest, or undebatable) evidence that Veteran's rheumatoid arthritis preexisted his active-duty service, to include the April 1970 annual drill period?

b) If it is determined that rheumatoid arthritis clearly and unmistakably preexisted service, is there clear and unmistakable (obvious, manifest, or undebatable) evidence that the preexisting rheumatoid arthritis was not aggravated beyond the natural progression of the condition, during his active-duty service, to include the April 1970 annual drill period?

The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability.

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c) If rheumatoid arthritis did not clearly and unmistakably preexist service, did it at least as likely as not (50 percent probability or greater) have its onset during service or is it otherwise related to his active-duty service, to include the April 1970 annual drill period??

In rendering the above opinions, the examiner is asked to reconcile the private May 2018 private opinion of Dr. C.B, the Veterans descriptions of his condition, and the RO's finding that his condition occurred after service.

 

D. SMART

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Stuedemann, Angela L.

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.