Citation Nr: 21072840 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 19-18 401 DATE: December 6, 2021 ORDER Service connection for bilateral hearing loss is granted. FINDING OF FACT Affording the Veteran the benefit of the doubt, his current bilateral sensorineural hearing loss disability onset due to acoustic trauma sustained in service. CONCLUSION OF LAW The criteria to establish service connection for a bilateral hearing loss disability have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1961 to September 1964. This matter came before the Board of Veterans' Appeals (Board) on appeal from an April 2018 rating decision issued by the RO. The Veteran testified before the undersigned Veterans Law Judge in a video-conference hearing in September 2019. A transcript of the hearing is of record. In December 2019, the Board reopened the previously denied claim of service connection for hearing loss and remanded the claim for clarification on whether the Maryland CNC test was used to determine speech recognition results in the October 2019 private audiological examination. In a December 2019 letter, the RO requested that the Veteran provide authorization to obtain records from the private treatment provider. The Veteran did not respond to the request. Given the Veteran's inability to cooperate with VA to obtain these records, further effort to assist the Veteran will not be undertaken. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("the duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."). Thus, the requested development has been completed and the case has been returned to the Board for appellate disposition. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). 1. Entitlement to service connection for bilateral hearing loss The law provides that 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 military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities such as other organic disease of the nervous system (i.e., sensorineural hearing loss), are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As noted, other organic disease of the nervous system (i.e., sensorineural hearing loss) is a chronic disease. 38 U.S.C. § 1101. Therefore, section 3.303(b) is potentially applicable. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b). Specific to claims of service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran asserts that noise exposure in service caused his bilateral hearing loss disability. Because there is competent medical evidence that links the Veteran's hearing loss to his military service, the claim will be granted. The September 1961 enlistment examination reflects the Veteran exhibited 15/15 in both right and left ear hearing on whispered voice testing. Pure tone threshold testing was not performed. The August 1964 separation audiological examination showed that the Veteran's Puretone thresholds, in decibels, were as follows (note ASA to ISO (ANSI) conversion): HERTZ 500 1000 2000 3000 4000 RIGHT 30 0 5 0 -5 LEFT 10 0 0 0 10 The service treatment records show no complaints or findings of hearing loss disability. However, that the absence of in-service evidence of hearing loss disability is not fatal to the claim, see Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of section 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). In December 2005, the Veteran underwent a VA audiological examination which showed that the Veteran's pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 35 45 60 70 LEFT 35 40 40 65 65 Speech audiometry revealed speech recognition ability of 80 percent in the right ear and 92 percent in the left ear. Thus, he demonstrated bilateral hearing loss disability for VA purposes. The audiologist opined that the Veteran's current hearing loss was not caused by or a result of acoustic trauma experienced during his period of service. The audiologist did not know the cause of the Veteran's hearing loss because he denied post-service occupational and recreational noise exposure and denied familial history of hearing loss. The audiologist explained that the hearing loss could be presbycusis (hearing loss accompanying the aging process) and noted that the separation examination showed hearing within normal limits in both ears. In February 2018, the Veteran underwent a VA audiological examination which showed that the Veteran's pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 55 65 70 80 LEFT 45 55 60 70 70 Speech audiometry revealed speech recognition ability of 76 percent in the right ear and 76 percent in the left ear. Thus, he demonstrated bilateral hearing loss disability for VA purposes. The audiologist opined that the Veteran's current hearing loss was less likely caused by or a result of an event during his period of service. The audiologist acknowledged that the Veteran's military specialty occupation had a high probability for military noise exposure. However, his separation examination audiograms were within normal limits and no significant threshold shift from entrance to separation was documented. Further, there were no documented complaints of hearing loss during service or within a year of the Veteran's discharge from service. Thus, the audiologist concluded that the Veteran's bilateral hearing loss disability was less likely than not caused by military noise exposure. An October 2019 statement reflects that the private audiologist reviewed provided service treatment records, including entrance and separation hearing tests and VA treatment records. The audiologist also noted that the Veteran served as a tank driver and trainer during his period of service and his duties involved exposure to excessively loud sounds from firing guns and being a tank driver and he performed his duties without hearing protection. The audiologist reported that audiological evaluation performed in her office showed that the Veteran has bilateral sensorineural hearing loss ranging in degree from mild to severe in the right ear and mild to profound in the left ear. The Veteran demonstrated good word discrimination ability when presented at an elevated presentation level using a W-22-word list. Otoscopy was unremarkable bilaterally and tympanograms revealed good tympanic membrane mobility and pressure. The Veteran denied exposure to recreational or occupation noise during his civilian life and denied any otalgia, vertigo, head trauma or other significant health concerns. The audiologist opined that the Veteran's bilateral hearing loss at least as likely as not onset due to noise exposure incurred during his military service. In September 2021, the Veteran underwent a VA audiological examination which showed that the Veteran's pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 50 60 70 70 LEFT 45 50 60 65 70 Speech audiometry revealed speech recognition ability of 60 percent in the right ear and 52 percent in the left ear. Thus, he demonstrated bilateral hearing loss disability for VA purposes. The audiologist opined that the Veteran's current hearing loss was less likely caused by or a result of an event during his period of service. The audiologist acknowledged that the Veteran's military specialty occupation had a high probability for military noise exposure but explained that the service treatment records and separation examination were silent for any complaints of hearing loss. The audiologist noted that the Veteran reported the onset of hearing decrease 15 years after his separation from service after exposure to recreational and/or occupational noise. The audiologist noted that although noise exposure was conceded and the relationship between noise, auditory damage and hearing loss was well documented, auditory damage and hearing loss were not conceded based on noise alone. The audiologist concluded that there was no evidence to support a nexus to relate the current hearing loss to military noise and not another etiology. Thus, the audiologist concluded that it was less likely as not that the Veteran's current hearing loss was related to military noise exposure. The Veteran reports that he was exposed to noise from driving tanks and firing guns without hearing protection. His military personnel records document that he served in armored combat vehicle units as an Armor Crewman and that he qualified with multiple hand-held weapons. He describes bilateral hearing loss since exposure to acoustic trauma in service. His statements are credible and consistent with circumstances of his service. The Board has no reason to doubt the credibility of his statements and concludes that there has been continuity of hearing loss symptoms since service. 38 C.F.R. § 3.303(b). As documented in the December 2005, February 2018 and September 2021 VA examination reports, the Veteran has a current hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. The October 2019 private treatment statement documents the audiologist's opinion that the Veteran's bilateral hearing loss at least as likely as not onset due to noise exposure incurred during his military service. The private audiologist reviewed provided service treatment records, including entrance and separation hearing tests and VA treatment records. The audiologist noted that the Veteran served as a tank driver and trainer during his period of service and his duties involved exposure to excessively loud sounds from firing guns and being a tank driver without the aid of hearing protection. In addition, the audiologist noted that the Veteran denied exposure to recreational or occupation noise during his civilian life and denied any otalgia, vertigo, head trauma or other significant health concerns. The Board is aware that, in the December 2005, February 2018 and September 2021 VA examinations, the audiologists opined that the Veteran's bilateral hearing loss was less likely caused by or a result of an event during his period of service because service treatment records and separation examination were silent for any complaints of hearing loss (September 2021 VA examination) and his separation examination audiograms were within normal limits; there was no significant threshold shift from entrance to separation documented; and there were no documented complaints of hearing loss during service or within a year of the Veteran's discharge from service (February 2018 VA examination). In the December 2005 VA examination, the audiologist explained that he did not know the cause of the Veteran's hearing loss because he denied post-service occupational and recreational noise exposure and denied familial history of hearing loss. The audiologist noted that the hearing loss could be presbycusis (hearing loss accompanying the aging process) and stated that the separation examination showed hearing within normal limits in both ears. Despite acknowledging that the Veteran's military specialty occupation had a high probability for military noise exposure, the VA audiologists essentially rely on the absence of a hearing loss disability in service. Such deficiency is not a bar to service connection. Ledford v. Derwinski, 3 Vet. App. at 89 (1992). Further, in December 2005, the audiologist seemingly suggests that the Veteran's hearing loss disability may be attributable to the aging process. In this regard, the audiologist's opinion is speculative in nature and does not provide the degree of certainty required for persuasive nexus evidence in this case. Conjectural or speculative opinions which suggest no more than some remote possibility of an etiological relationship are insufficient to decide a claim of service connection. See 38 C.F.R. § 3.102 (2007). See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (medical evidence which merely indicates that the alleged disorder "may or may not" exist or "may or may not" be related, is too speculative to establish the presence of the claimed disorder or any such relationship). Thus, the Board affords the December 2005 audiologist's opinion as to etiology of the bilateral hearing loss disability little probative value. In the September 2021 VA examination, the audiologist noted that the Veteran reported the onset of hearing decrease 15 years after his separation from service after exposure to recreational and/or occupational noise. However, the Board notes that the Veteran has consistently denied history of recreational and/or occupational noise exposure. The Veteran has credibly asserted that he incurred acoustic trauma in service and sustained the onset of his hearing loss symptoms therein and has continued to experience hearing loss since. His exposure to military noise is unquestioned. While the VA audiologists in December 2005, February 2018 and September 2021 opine that the current bilateral hearing loss is not attributable to noise exposure incurred during service, the October 2019 statement from the private audiologist reflects the audiologist's opinion that the Veteran's bilateral hearing loss at least as likely as not onset due to noise exposure incurred during his military service. Thus, the evidence is in relative equipoise in showing that his current bilateral hearing loss disability had its onset due to acoustic trauma sustained in service. Reasonable doubt is resolved in the Veteran's favor and entitlement to service connection for a bilateral hearing loss disability is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Jackson The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.