Citation Nr: 21070807 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 19-36 516 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, her bilateral hearing loss is at least as likely as not etiologically related to in-service exposure to hazardous noise. 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 had active service between March 1969 and October 1979. This matter comes before the Board of Veterans Appeals (Board) on appeal from a September 2018 rating decision by the Department of Veterans Affairs (VA) regional office (RO), which denied service connection for bilateral hearing loss. The Veteran testified at a hearing before the undersigned Veterans Law Judge in March 2021. A transcript of that hearing has been associated with the record. 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 her bilateral hearing loss is related to her active-duty military 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 (Hz) is 40 decibels (dB) or greater; or when the auditory threshold for at least three of these frequencies is 26 dB 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 VA Hearing Loss examinations in September 2018 and October 2019, which both diagnosed bilateral sensorineural hearing loss within the thresholds required to constitute 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 evidence establishes that the Veteran had in-service exposure to hazardous noise. She served as a radioman, which is a military occupational specialty (MOS) with a high probability of exposure to hazardous noise. The Veteran also testified in great detail as to the consistent, high levels of occupational noise exposure she faced during her time in active service. She described the training headsets with loud beeps from Morse code, the loud environments she continuously worked in, including communications stations and message centers with multiple rows of noisy teletype machines and commercial-grade printers, as well as working near an airfield with jet noise. The Board finds her testimony credible and concludes she suffered in-service exposure to hazardous noise. The Board also notes that the RO granted service connection for the Veteran's related tinnitus claim and found exposure to hazardous noise. Thus, the question becomes whether the Veteran's current hearing loss disability is related to her in-service exposure to hazardous noise. On this question there are probative opinions in favor of and against the claim. The evidence against the claim includes a VA examination in September 2018, in which the examiner opined the etiology of the Veteran's hearing loss could not be determined without resorting to mere speculation. The examiner stated that "39 years ha[d] passed since military service. The effects of aging, other health conditions or medications, and occupational or recreational noise exposure since military service is unknown." Additionally, an October 2019 VA examiner opined the Veteran's hearing loss was less likely than not due to military noise exposure, despite acknowledging her MOS had a high probability of noise exposure. This examiner's rationale was that there were no significant threshold shifts identified during service and her hearing was normal at separation. Although the examiner addressed the Veteran's lay statements with regard to tinnitus and found her in-service noise exposure was a likely cause of tinnitus, the examiner did not address her statements or this reported exposure with regard to her hearing loss. The evidence in favor of the claim includes two private medical opinions. The first, a February 2019 nexus opinion from audiologist Dr. L.O., opines that the Veteran's military service was at least as likely as not a contributing factor in her current hearing loss issues. This provider did note in the opinion that the Veteran's in-service medical records were not reviewed, but rather the opinion was based on interviews with the Veteran regarding her medical history and symptomatology. A second nexus opinion, in May 2021 from otolaryngologist Dr. G.M., also opined it was more likely than not that the Veteran's hearing loss was due to military noise exposure, "[g]iven the timing of her hearing loss starting with the noise exposure and a known causation of Morse code and teletypes causing noise-induced hearing issues." The Veteran also testified as to her hearing loss symptoms during military service and since leaving service. She described in-service symptoms of hearing loss that she noticed when socializing with coworkers after working in a loud environment all day. She described how she would leave work for the day and have conversations in which she was essentially yelling at people without realizing it because the loud working environment impacted her hearing to such an extent. She commented that "everybody would just be yelling" at each other even after leaving the loud environment because their "hearing [got] muted down because it is so loud." As to her post-service experiences, the Veteran described attending meetings at work after separating from service, in which she was unable to hear what was being said as she sat around the meeting table. The Veteran denied any occupational noise exposure after separating from the military, stating she worked in an office and was never in any loud work environments, but her hearing got progressively worse despite this. She denied recreational noise exposure since leaving military service, stating she did not attend concerts, play video games while wearing a headset, fire weapons, or engage in any other loud recreational pursuits. She denied having any medical conditions or taking any medications that affect her hearing. As to her lengthy delay in filing a claim with VA for hearing loss, the Veteran testified that she never filed a claim because she was unaware she could do so, noting that "no one asked" at separation if she thought she might have hearing loss and that such benefits were not widely discussed. The Veteran is competent to identify subjective symptoms of decreased hearing acuity during and since active service, and the Board finds her statements and overall testimony credible. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Furthermore, the Board notes that the RO has also found the Veteran's lay assertions credible in granting her tinnitus claim based on the same factual circumstances. 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). The September 2018 VA examiner did not offer an etiology opinion and failed to address lay statements or obtain relevant details from the Veteran regarding her history and symptomatology. As discussed above, the Veteran refuted other potential intercurrent causative factors such as recreational noise exposure as cited by that examiner. The September 2018 VA opinion lacks probative value. The October 2019 VA opinion also has low probative value as it did not consider all the pertinent facts and failed to address the Veteran's competent lay statements of relevant symptoms in concluding her hearing loss was not related to service. As such, the opinion does not provide a complete, thorough, and detailed rationale supporting the conclusions made. Additionally, although the October 2019 examiner cited the Veteran's normal hearing at separation and the lack of significant threshold shifts during service in her rationale for finding the Veteran's hearing loss was not related to service, the examiner did not define or explain what constitutes a significant threshold shift. Moreover, the Veteran's separation audiogram does in fact appear to indicate worsening hearing acuity at several frequencies when compared to her December 1968 enlistment and December 1972 in-service audiograms. Specifically, the Veteran's enlistment audiogram in December 1968 showed her auditory thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -5 -10 -5 -5 -5 LEFT 0 0 3 0 0 As it is unclear whether the December 1968 audiogram used the American Standards Association (ASA) standards or the International Standards Organization-American National Standards Institute (ISO-ANSI) standards, the Board will consider this audiogram under both standards. To facilitate data comparisons for VA purposes, audiometric data originally recorded using ASA standards are converted ISO-ANSI units by adding between 5 and 15 decibels to the recorded data as follows: adding 15, 10, 10, 10, and 5 dB to Hz ranges 500, 1000, 2000, 3000, 4000 respectively. For the December 1968 audiogram, the Board will also consider the data as if it were taken in accordance with ASA standards and convert it to the following values under ISO-ANSI: HERTZ 500 1000 2000 3000 4000 RIGHT 10 0 5 5 0 LEFT 15 10 13 10 5 The Veteran subsequently underwent an in-service audiogram in December 1972, using ISO standards, which showed auditory thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 5 5 LEFT 20 10 5 15 5 Finally, the Veteran's separation audiogram in July 1979, using ISO-ANSI standards, showed auditory thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 5 10 10 LEFT 25 20 20 20 15 Assuming ASA standards were utilized in the enlistment audiogram, for the right ear, these findings reflect threshold shifts of 20 dB at the 500 and 1000 Hz frequency, and threshold shifts of 15 dB at the 3000 and 4000 Hz frequencies. For the left ear, these findings reflect threshold shifts from enlistment to separation of 25 dB at the 500 Hz frequency, and between 15-20 dB at the other frequencies. If ISO standards were utilized, as the conversion to ISO-ANSI above reflects, the threshold shifts would certainly be smallerbetween 5-10 dB. But, as noted previously, it is unclear under which standard the enlistment audiogram was conducted. Regardless, even considering the December 1972 audiogram to the separation audiogram in July 1979, 5-15 dB threshold shifts are also shown at every frequency, including, for the right ear, a 15 dB threshold shift at the 500 Hz frequency, and for the left ear, a 15 dB threshold shift at the 2,000 Hz frequency. These audiograms all seem to show, over time, that the Veteran had worsening of hearing acuity across all frequencies. Without further explanation of what is considered "significant" or the meaning of a threshold shift, and without knowing the testing standard of the enlistment audiogram, the VA examiner's rationale in citing the lack of significant threshold shifts is inadequate. Finally, the Board notes that even if a veteran has normal hearing at separation, it is not fatal to a claim of service connection for hearing loss. 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 hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service Hensley v. Brown, 5 Vet. App. 155 (1993). In this case, the Veteran has satisfied this standard. The two private medical opinions attributing her hearing loss to in-service noise exposure both indicate a considered evaluation of the Veteran's lay statements, her significant long-term exposure to hazardous noise, and application of the providers' knowledge of acoustic trauma. The Board acknowledges that the private providers appear to not have reviewed her service treatment records. However, the Board notes that the Veteran's in-service audiograms reflect worsening hearing, and the Veteran's lay statements regarding in-service noise exposure and continuity of symptomatology are credible. Accordingly, the Board finds that the evidence for and against the claim of entitlement to service connection for bilateral hearing loss disability is at least in equipoise when considering the probative value of the VA opinions and the private provider opinions, the service records, and the Veteran's competent and credible lay testimony. When the evidence is in relative equipoise, reasonable doubt must be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Therefore, entitlement to service connection for her bilateral hearing loss disability is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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.