Citation Nr: 21071760 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 16-01 871 DATE: December 1, 2021 ORDER Entitlement to service connection for left ear hearing loss is granted. FINDING OF FACT Reasonable doubt in the Veteran's favor, her left ear hearing loss is related to in-service exposure to acoustic trauma. CONCLUSION OF LAW The criteria for service connection for left ear hearing loss are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training (ACDUTRA) from July 1975 to January 1976 and from May 2,1982 to May 15,1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing in May 2019 before the undersigned Veterans Law Judge. The transcript is of record. In its December 2019 Board remand, the Board noted that with regard to the issues of service connection for a hand fracture, bilateral hearing loss, and tinnitus, the RO did not review the Veteran's service treatment records and thus, the claims must be reconsidered and not considered a petition to reopen. See 38 C.F.R. § 3.156(c). The Board remanded the Veteran's claims for service connection for a hand fracture, bilateral hearing loss, tinnitus, bilateral pes planus, and a cervical spine disability for further development. In January 2021 and February 2021 rating decisions, the Veteran's claim for a cervical spine disability and bilateral pes planus were granted and thus no longer before the Board. In April 2021, the Board remanded the issues of entitlement to service connection for bilateral hearing loss, tinnitus, and a right-hand disability. In an August 2021 rating decision, service connection for right ear hearing loss and tinnitus were granted. In a September 2021 rating decision, service connection for a right-hand disability was granted. These issues are no longer before the Board. Service Connection In order to prove service connection, there must be competent and credible evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the current disability and the in-service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For VA purposes, impaired hearing will not be considered to be a disability unless the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 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. 1. Entitlement to service connection for left ear hearing loss The Veteran contends that her bilateral hearing loss was a direct result of exposure to acoustic shock when she was on active duty in the military. See May 2012 Statement in Support of Claim. The Veteran stated that she worked around grenade launchers and was exposed to explosions from ground mines. Furthermore, the Veteran noted that as a materials storage specialist, she worked in the motor pool where she was exposed to engine noises from heavy equipment. The Veteran testified that she noticed her hearing getting worse during service. A review of the Veteran's service treatment records show that the Veteran had an audiological evaluation upon entrance in March 1975. Auditory thresholds for the right and left ear, in decibels, at 500 hertz (Hz), were noted to be 20. The Veteran's audiological evaluation at separation in January 1976 showed auditory thresholds for the left ear, in decibels, at 500, 1000, 2000, 3000, and 4000 Hz were as follows: 0, 0, 0, 0, 0. The Veteran also had an audiological evaluation, in February 1980, 4 years after active duty for training. Auditory thresholds for the left ear, in decibels, at 500, 1000, 2000, 3000, and 4000 Hz were as follows: 25, 15, 20, 15, 20. An audiogram in June 1984 showed auditory thresholds for the left ear, in decibels, at 500, 1000, 2000, 3000, and 4000 Hz were as follows: 30, 20, 20, 20, 20. The Veteran was afforded a VA examination in December 2012. Auditory thresholds for the left ear, in decibels, at 500, 1000, 2000, 3000, and 4000 Hz were as follows: 15, 10, 10, 25, 25. Speech discrimination scores in the left ear was 80 percent. However, the examiner noted that the use of the speech discrimination score was not appropriate for the Veteran because of language difficulties, cognitive problems, inconsistent speech discrimination scores, etc., that make combined use of puretone average and speech discrimination scores inappropriate. In its December 2019 Board remand, the Board noted that an updated VA examination and opinion was necessary as the December 2012 examiner was unable to provide an opinion without resorting to speculation, since the examiner found that the claims file does not hearing tests from her time in service to determine if a threshold shift had occurred. In a December 2020 VA opinion, the examiner stated that the Veteran's claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. However, after reading the rationale, it appears that the examiner incorrectly selected this statement. The examiner expressed that the most recent hearing examination provided for review was a ratings examination from December 2012 which showed normal hearing for VA purposes in both ears and tinnitus was reported as beginning approximately one year prior. The examiner stated that military and VA hearing examinations in 1975, 1976, 1980, 1984, 2010, 2012 show normal hearing for VA purposes in both ears. The examiner expressed that two hearing examinations in 2012 showed poor patient reliability for word discrimination testing. The examiner expressed that the Veteran's DD Form 214 shows a military occupational specialty of Stock Clerk which had a low probability for hazardous noise exposure. The examiner noted that tinnitus was not reported during military service and that the Veteran reported twice in 2012 that her tinnitus began in 2010/2011. The examiner stated that hearing examinations during and after service show normal hearing with no significant hearing changes. The examiner opined that there is no evidence of preexisting tinnitus or hearing loss prior to service and there was no report of tinnitus until many years after service, along with no hearing changes. In a January 2021 VA examination, the examiner opined that it is less likely than not the Veteran's hearing loss incurred in and/or caused by or otherwise related to any period of the Veterans ACDUTRA, and/or INACDUTRA service. The examiner noted that the Veteran reportedly served for 12 years in the Army, with only one year of active duty. The examiner stated that the Veteran's military occupational specialty while on active duty was Material Store Specialist, which is considered a low probability for hazardous noise exposure. The examiner noted that the Veteran reported noise from firing guns with her right hand, using a grenade launcher, and from the motor pool. The examiner reported that the Veteran had an entrance audiogram in March 1975, which revealed hearing within normal limits from 500-6000 Hz, bilaterally, and a separation audiogram in January 1976 that revealed hearing within normal limits, without significant threshold shifts. The examiner noted that two audiograms in the 1980s reveal hearing loss at 500 Hz. The examiner stated that the most recent hearing test from the VA during 2012 reveals normal hearing at 500 Hz, and only a hearing loss at 6000-8000 Hz., bilaterally. Thus, the examiner opined that this evidence does not support her claim for hearing loss and tinnitus. The examiner stated that the Veteran's hearing loss is at least as likely due to aging and non-military noise exposure. After finding the December 2020 and January 2021 VA opinions to be inadequate, the Board requested another VA examination. The Veteran was afforded a VA examination in June 2021. Auditory thresholds for the left ear, in decibels, at 500, 1000, 2000, 3000, and 4000 Hz were as follows: 20, 20, 25, 30, 35. The speech discrimination score in the left ear was 88 percent. The examiner noted that the use of word recognition score was appropriate for the Veteran. The examiner opined that the Veteran's left ear hearing loss was less likely as not caused by or a result of an event in service. The examiner stated that enlistment active-duty hearing test dated in March 1975 and active-duty separation hearing test dated in January 1976 revealed normal pure tone thresholds at 500Hz-6000Hz with no shifts in hearing. The examiner noted that the Veteran's military occupational specialty, while on active duty, was a Material Store Specialist, which is considered a low probability for hazardous noise exposure. However, the examiner indicated that the Veteran reported multiple military occupational specialties while in the reserves which subjected her to grenade launchers, ground mines, cannons, M60, and trucks with the motor pool. The examiner stated that follow-up hearing tests during inactive duty dated in February 1980 and June 1984 also revealed normal pure tone thresholds 500Hz-6000Hz with no shifts in hearing. The examiner noted that inactive separation hearing test in 1987 was not found in the claims file. The examiner stated that comparing the VA examination in December 2012, 25 years after inactive separation, did not reveal a shift in hearing when compared to enlistment hearing test of March 1975. The examiner stated that the Veteran reported civilian occupational noise exposure as a machine operator for 5 years. The examiner expressed that in the Institute of Medicine (IOM), the IOM concluded that based on current knowledge of cochlear physiology, there was no sufficient scientific basis for the existence of delayed-onset hearing loss. IOM did not rule out that delayed onset might exist but because the requisite longitudinal animal and human studies have not been done and based on current knowledge of acoustic trauma and the instantaneous or rapid development of noise-induced hearing loss, there was no reasonable basis for delayed-onset hearing loss. With all things equally weighed and the IOM study above, the examiner opined that hearing loss is not due to or the result of military service. The examiner stated that positive occupational noise exposure should be considered a contributing factor in her overall hearing. The RO requested a clarifying VA opinion in July 2021, from the previous June 2021 VA examiner. The examiner was asked whether it is at least as likely as not that any hearing loss and/or tinnitus was caused or aggravated by or otherwise related to any period of the Veteran's ACDUTRA, and/or INACDUTRA service. The examiner opined that hearing loss is at least as likely as not due to or the result of military service. The examiner based his opinion on the Veteran's report of military noise exposure, lack of a hearing test at inactive military separation, and the shift in hearing seen at 6000 Hz on the VA examination dated in December 2012 as compared to the enlistment test in March 1975. After review of the VA examinations and resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's left ear hearing loss is related to in-service exposure to acoustic trauma. While the Board cannot ignore or disregard the VA examiner's medical conclusions, 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 that regard, the VA examiner's opinion in June 2021 is problematic because the examiner based the opinion partly on the Veteran's normal left ear hearing thresholds at the time of entrance and separation from service. In addition, the examiner provided a negative nexus based on the fact that there was no shift in hearing from entrance, in March 1975, to the VA examination in December 2012. However, there was a shift in hearing. Here, the Veteran's entrance in March 1975 revealed auditory thresholds for the right and left ear, in decibels, at 500 hertz (Hz), to be 20. In December 2012, auditory thresholds for the left ear, in decibels, at 500, 1000, 2000, 3000, and 4000 Hz were as follows: 15, 10, 10, 25, 25. The Board therefore finds the VA examiner's opinion regarding left ear hearing loss to be of diminished probative value. As the VA examiner's opinion is not adequate, it does not assist the Board or the Veteran in resolving this claim and cannot serve as the basis of a denial. (Continued on the next page) Furthermore, in the clarifying July 2021 VA opinion, the examiner was asked whether it is at least as likely as not that any hearing loss was caused or aggravated by or otherwise related to any period of the Veteran's ACDUTRA, and/or INACDUTRA service. Without distinguishing between right and left ear hearing loss, the examiner provided a positive nexus. Thus, this supporting evidence places the pertinent record in relative equipoise. The Board finds it is not possible to determine to what extent the Veteran's left ear hearing loss may be attributed to noise exposure in service, and some doubt remains as to whether at least some of the hearing loss may be attributable to service, as opposed to another cause. Moreover, throughout the record, the Veteran has submitted statements indicating that she has experienced hearing loss since service. The Board finds these statements competent and credible. Accordingly, resolving reasonable doubt favor of the Veteran, service connection for left ear hearing loss is granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990) LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. 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.