Citation Nr: 21077010 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 15-31 354 DATE: December 28, 2021 ORDER Service connection for left ear hearing loss is granted. FINDING OF FACT The Veteran's left ear hearing loss disability cannot be satisfactorily disassociated from in-service noise exposure or his service-connected tinnitus. CONCLUSION OF LAW Resolving all doubt in favor of the Veteran, the criteria for service connection for left ear hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 1991 to February 1993. This case is before the Board of Veterans' Appeals (Board) on appeal from a June 2015 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO denied entitlement to service connection for bilateral hearing loss. The Veteran's notice of disagreement (NOD) was received in June 2015. The RO issued the statement of the case (SOC) in August 2015, and the Veteran's VA Form 9, substantive appeal was received in August 2015. The Veteran testified at a travel board before a Veterans Law Judge (VLJ) in May 2018. A transcript of that testimony is of record. In a September 2018 decision, the Board denied entitlement to service connection for right ear hearing loss, and remanded the issue of entitlement to service connection for left ear hearing loss for further development and adjudicative action. After the case was returned to the Board, the Veteran was notified in January 2021 that he was entitled to a second Board hearing because the VLJ who held the May 2018 hearing was no longer employed at the Board. The Veteran elected to appear at another Board hearing, which was subsequently held in September 2021, before the undersigned VLJ. A transcript of that testimony is also of record. 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)). 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) (2018). Service connection may also be granted for any disease 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). Additionally, certain chronic diseases, including sensorineural hearing loss and tinnitus (as organic diseases of the nervous system), may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. To establish service connection under this provision, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. The provisions of 38 C.F.R. § 3.303 (b) relating to continuity of symptomatology, however, can be applied only in cases involving those conditions explicitly enumerated under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the purpose of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels (dB) or greater; or when the auditory threshold for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz 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. When audiometric test results at separation from service do not meet the regulatory requirements for establishing a "disability" at that time, a veteran may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The threshold for normal hearing is from 0 to 20 decibels. Id. at 157. Entitlement to service connection for left ear hearing loss The Veteran contends that he has bilateral hearing loss which is related to in-service noise exposure. Specifically, that he was exposed to hazardous noise as a result of his military occupational specialty of electrician/mechanical equipment repairman (boiler technician). See May 2018 Board hearing transcript, p. 3. Initially, the Veteran has a current disability of left ear hearing loss for VA purposes. See, e.g., August 2020 VA hearing loss and tinnitus Disability Benefits Questionnaire (DBQ). Thus, the current disability element of the service connection claim is met. Additionally, and as set out in the prior Board decision dated September 2018, the Veteran's reports of hazardous noise exposure during service are consistent with his MOS of electrician/mechanical equipment repairman. Moreover, in the August 2015 SOC the RO conceded in-service noise exposure, based on the Veteran's credible reports of in-service noise exposure and with consideration for his MOS. There is no evidence in the record to conflict with such findings, and as a result, in-service noise exposure is conceded. Accordingly, the first and second elements of the service connection claim are met, based on a current disability of left ear hearing loss and in-service hazardous noise exposure. Thus, the dispositive issue is whether a nexus exists to connect the current left ear hearing loss to the in-service noise exposure. Service Treatment Records (STRs) do not show complaints, treatment, or diagnosis of left ear hearing loss, but show that the Veteran underwent audiometric testing in January 1991, March 1991, July 1991, September 1992, and January 1993. Each audiogram shows that hearing was normal at each puretone threshold considered for VA purposes (i.e., from 500 Hz to 4000 Hz). The in-service audiograms also show that hearing was significantly worse at higher frequenciesspecifically, left ear hearing threshold tested to 70 decibels or worse at 6000 Hz at each in-service audiometric examination. Private audiograms conducted from October 2005 to September 2012 show that the Veteran had a hearing loss disability for VA purposes. The Veteran had a VA hearing loss and tinnitus examination in May 2015. Puretone threshold testing revealed left ear hearing loss, but the examiner opined against a link between hearing loss and service. The rationale was as follows: Entrance exam on January 7, 1991 showed a severe hearing loss at 6000 Hertz in the left ear. The exit exam on January 13, 1993 also showed a severe hearing loss at 6000 Hertz with no significant thresholds shifts. Opinion based on evidence reviewed and clinical expertise. The examiner found that hearing loss pre-existed service and was not aggravated beyond natural progression by service, based on the examiner's finding of "no significant threshold shift" during service. The examiner also determined that The Veteran has a diagnosis of clinical hearing loss, and his [] tinnitus is at least as likely as not (50% probability or greater) a symptom associated with the hearing loss, as tinnitus is known to be a symptom associated with hearing loss. A May 2018 private hearing aid center report notes that the Veteran "has a moderate to severe sensorineural hearing loss in both ears. Suffers from tinnitus in both ears. Seems to be a noise induced loss." The Veteran had another VA hearing loss and tinnitus examination in August 2019. The examiner again opined that the left ear hearing loss was less likely than not related to service. The rationale was as follows: A review of the veteran's service treatment records show five audiometric exams completed during the service which all show no significant changes from his enlistment exam. Using the VA standard to assess the audiometric exams, the veteran would be considered to have had normal hearing on all five exams completed during the service with no significant changes during the service. Although the veteran's lay statement states that his hearing loss began in the service, there are five objective audiological exams that refute that statement. Therefore, it is less likely than not (less than 50% probability) that the veteran's hearing loss is caused by or a result of military noise exposure. There must be evidence indicating that a disability was incurred or aggravated in the line of duty. Conceded exposure to acoustic trauma (e.g., MOS) is neither an injury nor a disease and is not sufficient to establish line of duty injury or disease. According to Smith v. Shinseki, 24 Vet. App. 40, 48 (2010), competent, credible evidence of a line of duty injury or disease is needed. The veteran's service records showed no hearing loss or significant changes in hearing thresholds greater than normal measurement variability during military service. The Institute of Medicine (2006) stated there was insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure. The IOM panel concluded that based on their current understanding of auditory physiology a prolonged delay in the onset of noise-induced hearing loss was "unlikely". Studies from Lee, Matthews, Dubno, Mills (2005); Cruickshanks et al 2010; and Hoffman et al (2015) show that past noise history had no significant effect on rates of threshold changes later in life. Based on the objective and scientific evidence available, there is no evidence on which to conclude that the Veteran's current hearing loss was caused by or a result of the veteran's military service, including nose exposure. The Veteran had another VA hearing loss and tinnitus examination in August 2020. Audiometric testing showed a current left ear hearing loss disability. The examiner again opined that the left ear hearing loss was less likely than not related to service. The rationale was as follows: [The Veteran's] MOS as electricians mate had a moderate probability of hazardous noise exposure and he reports significant noise exposure which could be potentially harmful to hearing. He has hearing loss in the higher frequency regions (IE: 6000 Hz) at entry but no significant shift is noted from entry to exit and no significant hearing loss in the VA related frequencies (IE: 500-4000 Hz) was measured at exit testing. The previous evaluations determined this to be not related to noise and while he was exposed to potentially harmful noise during service, no additional information is present to change a previous finding. [sic] The examiner noted that hearing loss pre-existed service, based on the puretone thresholds at 6000 Hz noted in the January 1991 entrance examination. Additionally, the examiner opined that pre-existing hearing loss was not aggravated beyond normal progression by service; the rationale was as follows: "Loss was measured at 6000 Hz on entrance exam but didn't progress during service. No loss was measured from 500-4000 Hz in either ear." An additional opinion was obtained, from the August 2020 examiner, in September 2020. The examiner was asked to opine as to whether it is as likely as not that the Veteran's left ear hearing loss (i) had its onset in service; (ii) was manifested to a compensable degree within the first post-discharge year; or (iii) was otherwise medically related to in-service injury or disease, to include acoustic trauma associated with recognized in-service noise exposure. The examiner opined as follows: His military occupational specialty (MOS) as electricians mate had a moderate probability of hazardous noise and he reports significant noise exposure. No significant shift in hearing is noted from entry to exit but his report of tinnitus since service suggests some level of possible acoustic trauma during service related noise exposure. The hearing loss existed to a degree at entry and didn't significantly change at the exit. Therefore, I can't say it had its onset during service. I don't have any tests within the first year to support was manifested to a compensable degree within the first post-discharge year. The last option C [i.e., that the hearing loss is related to in-service noise exposure] could apply, which due to MOS with a moderate probability of hazardous noise exposure and the onset of tinnitus within a short time of service, in-service injury to ears/ hearing on a more probable than not basis related to acoustic trauma associated with recognized in-service noise exposure. At his September 2021 Board hearing, the Veteran testified that the lack of hearing protection during service, while working as a boiler technician, caused him to experience a substantial hearing loss after service which has since progressed. He reported that he has worn hearing protection at his various jobs since service. While the Veteran is competent to report an observable symptom such as noticing a decrease in hearing acuity, he is not competent to know the cause of a hearing loss disability for VA purposes that had its clinical onset many years after the Veteran's alleged in-service noise exposure. Accordingly, the analysis turns to whether the competent medical evidence of record supports the Veteran's assertion that his left ear hearing loss is related to service. On that issue, the record contains the May 2015, August 2019, August 2020, and September 2020 VA examination reports. The May 2015 opinion is based on a finding that hearing loss shown at 6000 Hz on the Veteran's entrance examination, in January 1991, reflected a severe hearing loss at entrance to service. The August 2020 opinion cited the hearing loss shown at 6000 Hz, at entrance to service, in support of the examiner's opinions that the hearing loss was not caused by or incurred in-service, and was not aggravated beyond normal progression by service. Under 38 C.F.R. § 3.385, VA considers only the frequencies between 500 Hz and 4000 Hz in making determinations as to whether a hearing loss disability exists. Without a hearing loss disability shown at any frequency between 500 Hz and 4000 Hz at the Veteran's entrance to service, the opinions that rely on pre-existence and a lack of aggravation during service are not probative as to the issue of in-service onset and whether the in-service noise exposure resulted in the current hearing loss for VA purposes. The August 2019 opinion is based on an accurate factual basis, including the Veteran's lay statements, the STRs, and the post-service medical records. The opinion applies the Veteran's unique hearing loss disability picture to the medical literature and current medical knowledge. The opinion is clearly worded, as to be unequivocal. For those reasons, the opinion carries significant probative weight. The September 2020 opinion was formed following a thorough review of the medical evidence, including STRs and post-service treatment records, and considered the Veteran's lay reports as to onset of symptoms. In that opinion, the examiner relates the Veteran's left ear hearing loss to the reports of tinnitus during the same time frame. When this opinion is considered along with the May 2015 examiner's opinion that the Veteran's (now) service-connected tinnitus is, as likely as not, a symptom associated with his hearing loss, the September 2020 opinion carries significant probative value. Based on the foregoing, the probative evidence is evenly balanced as to whether the Veteran's hearing loss is related to in-service noise exposure. While the August 2019 opinion carries significant probative value weighing against the claim, the September 2020 opinion carries similarly probative value in favor thereof. Specifically, the language of that opinion indicates that, based on the Veteran's reports of tinnitus since service, the Veteran likely experienced acoustic trauma due to in-service noise exposure, and this is consistent with the May 2015 examiner's opinion that the tinnitus is as likely as not a symptom associated with the hearing loss. Moreover, based on the Veteran's MOS and his conceded in-service hazardous noise exposure, an "in-service injury to ears/hearing" was "more probable than not." When considered along with the private May 2018 hearing center note, the record contains sufficient evidence to grant this claim. In essence, the Veteran's current left ear hearing loss disability cannot be satisfactorily disassociated from his in-service noise exposure or his service-connected tinnitus. For those reasons, the evidence is at least evenly balanced as to whether the Veteran's current left ear hearing loss disability is related to in-service noise exposure. When the evidence is evenly balanced, all reasonable doubt must be resolved in the Veteran's claim. The claim is granted. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. KAYS HUKILL 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.