Citation Nr: 21070762
Decision Date: 11/26/21	Archive Date: 11/26/21

DOCKET NO. 14-25 344A
DATE: November 26, 2021

ORDER

Entitlement to service connection for bilateral hearing loss is granted.

FINDING OF FACT

Resolving all reasonable doubt in the Veteran's favor, his bilateral hearing loss disability is etiologically related to acoustic trauma sustained in active service.

CONCLUSION OF LAW

The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from February 1997 to February 2001.

This matter comes before the Board of Veterans Appeals (Board) on appeal from a July 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The claim has a long history before the Board and has been remanded multiple times for further evidentiary development, most recently in June 2021. In that remand, the Board indicated that a May 2019 VA audiological examination, newly associated with the file, established a bilateral hearing loss disability, and directed the RO to obtain an examination and etiology opinion. The examination and etiology opinions were provided in August 2021, but service connection continued to be denied based on the new examination finding that the Veteran's hearing loss did not reach the threshold required to be considered a disability for VA purposes. The Board finds substantial compliance with the remand directives, and the claim has now returned to the Board for adjudication. See Stegall v. West, 11 Vet. App. 268 (1998).

Service Connection 

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In order to establish service connection, the record must show competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d, 1362, 1366 (Fed. Cir. 2009).

For the chronic diseases listed in 38 C.F.R. § 3.309(a), including sensorineural hearing loss (as organic diseases of the nervous system), service connection may alternatively be established with evidence of chronicity of the disease during service or during a presumptive period following service separation, or by showing a continuity of symptoms after service. 38 C.F.R. §§ 3.303(b), 3.307; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); see Fountain v. McDonald, 27 Vet. App. 258 (2015). When chronicity or continuity is established, subsequent manifestations of the same chronic disease at any later date, no matter how remote in time from the period of service, will be service connected unless clearly attributable to causes unrelated to service ("intercurrent" causes). 38 C.F.R. § 3.303(b).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107; see Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

1. Entitlement to service connection for bilateral hearing loss

The Veteran contends that his bilateral hearing loss is related to his active duty service.

VA considers impaired hearing to be a disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies these frequencies is 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. Pursuant to 38 C.F.R. § 3.385 (a), an examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test.

Here, the evidence establishes that the Veteran has a bilateral hearing loss disability as defined by VA. 38 C.F.R. § 3.385. The Veteran underwent an audiological examination performed by VA medical personnel in May 2019, which record was the subject of prior Board remands. This medical record establishes bilateral hearing loss for VA purposes. Specifically, the Veteran's auditory thresholds for the right ear were at 30 decibels in the 500 hertz, 1,000 hertz, and 2,000 hertz frequencies; at 35 decibels in the 3000 hertz frequency; and at 20 decibels in the 4,000 hertz frequency. His auditory thresholds for the left ear were at 25 decibels in the 500 hertz frequency; at 30 decibels in the 1,000 hertz, 2,000 hertz, and 3,000 hertz frequencies; and at 25 decibels in the 4,000 hertz frequency. 

The Board is aware that the Veteran has not been shown to have a hearing loss disability for VA purposes throughout the entire appeal period. The most recent VA audiological examination in August 2021 found hearing loss that did not satisfy the thresholds required to establish a disability for VA purposes. However, a hearing loss disability shown at any point during the appeal period can be service-connected as long as the other elements of service connection are met. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that a disability during the pendency of a claim warrants a finding a current disability requirement has been met, even if it resolves before the Board's adjudication of the claim). As the Board noted in its June 2021 remand, based on the May 2019 audiological examination, "the Veteran has shown a current disability." The February 2021 Supplemental Statement of the Case similarly noted, "you have bilateral hearing loss for VA purposes as defined by 38 C.F.R. § 3.385." The Board finds the May 2019 audiological examination to be competent, probative evidence of bilateral hearing loss which satisfies the thresholds to be considered a disability. Accordingly, the Veteran meets the first element of service connection and is considered to have current bilateral hearing loss for VA purposes.

The second element of service connection is also met. The VA has conceded that the Veteran had in-service exposure to hazardous noise, with impulsing weapons on a submarine, two instances of unprotected high pressure air relief lift exposures, and live fire from M60 machine guns, shotguns, M16 rifles, and 9 mm pistols.

As the first two prongs of the claim for service connection for bilateral hearing loss have been met, the issue on appeal turns on whether there is a link between the Veteran's current bilateral hearing loss and his service.

The August 2021 VA examiner opined the Veteran's right ear hearing loss was etiologically related to service, but that the Veteran's left ear hearing loss was not etiologically related to service. The positive nexus opinion for the right ear was based on a significant threshold shift in the Veteran's right ear between entrance and separation examination. In contrast, the examiner stated there was no significant permanent shift in left ear hearing thresholds from entrance to separation, which the examiner concluded was objective evidence that there was no permanent auditory damage on active duty due to the conceded noise exposure. The examiner further stated there was no report of complaints or treatment for hearing decrease in the Veteran's service records or at separation. 

The Board agrees with the examiner's conclusion as to the Veteran's right ear hearing loss and finds a positive nexus between hearing loss and in-service noise exposure; therefore, service connection is warranted. However, the Board disagrees with the examiner's findings regarding the left ear. Affording the Veteran the benefit of the doubt, the Board finds a nexus between the Veteran's left ear hearing loss and in-service noise exposure as well. The August 2021 examiner stated there was no permanent shift in hearing thresholds from entrance to separation. While it is true that the January 2001 separation audiogram did not indicate significant threshold shifts in the left ear, a March 2000 in-service audiogram did indicate significant threshold shifts in the left ear at the 1000 hertz and 4000 hertz frequencies. The VA examiner did not discuss this audiogram. Additionally, the examiner's notation that there was no report of complaints or treatment for hearing decrease at separation is not correct. The Veteran's separation physical specifically indicates "ear trouble" and "hearing loss" were checked and/or circled by the Veteran. Importantly, the record also contains favorable evidence in the form of lay statements from the Veteran, who has consistently maintained that his bilateral hearing loss has continued since service, when he was exposed to acoustic trauma. In his July 2012 VA audiological examination, he reported the onset of hearing loss in the late 1990s, right before he left military service. The Veteran denied occupational noise exposure post-service in his jobs waiting tables, working in a sign shop for one year, and in banking. VA medical records also reflect his reports of hearing loss since service. For example, in September 2016, he reported bilateral hearing loss since he left the service, with progressively worsening symptoms over the past 14 years. The Veteran has been prescribed hearing aids by the VA. The Veteran is competent to identify subjective symptoms of decreased hearing acuity during and since active service, and his statements are credible. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). This supporting evidence places the pertinent record in at least relative equipoise and reflect that the Veteran has experienced a continuity of symptoms since service. 38 C.F.R. § 3.303(b).

While the Board cannot ignore or disregard a VA audiologist's medical conclusions (Willis v. Derwinski, 1 Vet. App. 66 (1991)), the Board is free to assess medical evidence and is not compelled to accept a medical opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). In this case, the August 2021 VA examiner's opinion regarding the Veteran's left ear hearing loss is problematic because the examiner did not accurately address the Veteran's competent reports of relevant symptoms, including at separation, and did not address the March 2000 audiogram which found threshold increases of 15 decibels in the left ear at the 1000 hertz and 4000 hertz frequencies.

Accordingly, in view of the totality of the evidence, including the recognition of an in-service threshold shift, current findings of bilateral hearing loss, and credible lay assertions describing a continuity of relevant symptomatology since service, the Board finds that the evidence of record is at least in relative equipoise regarding this appeal. When the evidence is in relative equipoise, the benefit-of-the-doubt doctrine provides that such reasonable doubt will be resolved in favor of the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Therefore, service connection for bilateral hearing loss is granted.

 

 

JENNIFER HWA

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Medley, Associate 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.