Citation Nr: A21020445 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 211202-201813 DATE: December 22, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT The Veteran's bilateral hearing loss is at least as likely as not related to service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1966 to September 1968. This matter comes before the Board of Veterans' Appeals (Board) from an October 2021 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran submitted a timely VA Form 10182 (Notice of Disagreement) and requested direct review by the Board. Based on the Veteran's choice to pursue a direct review of his appeal, the Board will decide the appeal "based on the evidence of record at the time of the prior decision." Accordingly, no additionally submitted evidence may be considered. Entitlement to service connection for bilateral hearing loss is granted. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases are subject to a grant of service connection on a presumptive basis when present to a compensable degree within the first post-service year. 38 C.F.R. §§ 3.307, 3.309(a). Organic diseases of the nervous system, including sensorineural hearing loss, are considered by VA to be chronic diseases. 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). For claims for service connection for hearing loss or impairment, VA has specifically defined what is meant by a "disability" for the purposes of service connection. 38 C.F.R. § 3.385. "[I]mpaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Section 3.385 does not preclude service connection for a current hearing loss "disability" where hearing was within normal audiometric testing limits at separation from service. See Hensley, 5 Vet. App. at 159. When audiometric test results do not meet the regulatory requirements for establishing a "disability" at the time of the Veteran's separation, the Veteran may nevertheless establish service connection for a current hearing disability by submitting competent evidence that the current disability is the result of disease or injury in service. Id. at 160. In this case, VA acknowledged in the October 2021 rating decision that the Veteran had a qualifying event, injury, or disease during service. The RO noted that the Veteran's DD Form 214 shows the Veteran served in the military as a Cannon Crewman. VA also conceded that the Veteran has a current hearing loss disability. The question for the Board is whether there is a nexus between the current disability and the in-service injury. Based on the following, the Board finds that the evidence favors a finding of service connection. Service treatment records include the December 1965 entrance examination and August 1968 separation examination. Both examination reports include hearing acuity testing. Based on knowledge of service audiometric practice it is assumed that a veteran's service department audiometric tests prior to January 1, 1967 were in ASA units and require conversion to the currently used ISO units. However, in some instances, as in this case, ASA was used after January 1, 1967. The ASA units generally assigned lower numeric scores to hearing loss than do the ISO units, and conversion to ISO units is accomplished by adding 15 decibels to the ASA units at 500 Hertz, 10 decibels to the ASA units at 1000 Hertz, 2000 Hertz, and 3000 Hertz, and 5 decibels to the ASA units at 4000 Hertz. See VA Interim Issues 21-66-16, 21-66-17 (June 6, 1966); 10-66-20 (June 8, 1966); DM&S Manual M-2, Part XVIII, Chapter 4, paragraph 4.02, Use of International Standards Organization (ISO) for Audiological Examinations. At entrance to service, the Veteran's hearing acuity was as follows, with the ASA units in parenthesis: HERTZ 500 1000 2000 3000 4000 RIGHT (15) 30 (5) 15 (-5) 5 -- (-5) 0 LEFT (15) 30 (5) 15 (-5) 5 -- (0) 5 At separation from service, the Veteran's hearing acuity was as follows, with the ASA units in parenthesis: Aug 1968 HERTZ 500 1000 2000 3000 4000 RIGHT (0) 15 (-5) 5 (10) 20 -- (15) 20 LEFT (5) 20 (10) 20 (5) 15 -- (15) 20 Service treatment records show a shift in hearing in both ears at 1000, 2000, and 4000 Hz. The evidence also includes the July 2021 VA examination report, which shows a current hearing loss disability for VA purposes. 38 C.F.R. § 3.385. The examiner provided a negative nexus opinion; however, the opinion is not adequate for rating purposes. The examiner noted the Veteran's in-service history of noise exposure as well as his occupational noise exposure while working as a truck driver for seven years after service. The examiner found no nexus between the current disability and the Veteran's noise exposure during service based solely on the lack of evidence of a hearing loss disability shown at separation from service. As noted above, the Veteran's entrance and separation examinations show a decline in hearing in both ears at 1000, 2000, and 4000 Hz during service, a shift the examiner did not address. Further, section 3.385 does not preclude service connection for a current hearing loss disability where hearing was within normal audiometric testing limits at separation from service. See Hensley, 5 Vet. App. at 159. As such, the examiner did not provide adequate rationale in support of the negative nexus opinion. In support of the claim is a private opinion from Dr. L.S.O., dated in October 2021. Dr. L.S.O. indicated that she reviewed the Veteran's medical history and prior audiometric evaluations. She was informed of the Veteran's hazardous noise exposure during service, which she listed, and of the fact that the Veteran did not wear hearing protection during service. She observed that the Veteran's puretone thresholds were within normal limits at entrance and separation from service. She also acknowledged that the Veteran had significant noise exposure after service, with and without use of hearing protection. However, she found that it was more likely than not that the Veteran's delayed onset hearing loss was a direct result of his exposure to heavy artillery fire during service. Her opinion was based on medical literature showing that this kind of noise exposure can cause hearing loss. Based on the positive private opinion, as well as the in-service audiometric results which show decline in hearing acuity at 1000, 2000, and 4000 Hz, bilaterally, the Board finds that the evidence supports a finding of service connection for bilateral hearing loss. The appeal is granted. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. G. Alderman, 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.