Citation Nr: 21005795 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 14-31 268A DATE: February 2, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for hypertension is remanded. FINDING OF FACT The Veteran’s bilateral hearing loss is not etiologically related to service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 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 August 1966 to August 1968. He testified at an April 2019 Board video conference hearing. The hearing transcript is of record. In a September 2019 decision, the Board denied service connection for hypertension and remanded service connection for bilateral hearing loss for a supplemental medical opinion to address the etiology of the Veteran’s hearing loss in light of his testimony with regard to hazardous noise exposure in service. The Veteran appealed the September 2019 Board decision, insomuch as it denied service connection for hypertension, to the United States Court of Appeals for Veterans Claims (Court). In September 2020, the Court granted a joint motion for partial remand (JMPR) and remanded the appeal for service connection for hypertension for action consistent with the terms of the JMPR. The Board finds that the Agency of Original Jurisdiction (AOJ) has substantially complied with the Board’s September 2019 remand directives in obtaining a supplemental medical opinion to address hearing loss. Pursuant to the August 2020 JMPR, the Board is remanding service connection for hypertension for additional development. Entitlement to service connection for bilateral hearing loss Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran contends in April 2019 Board hearing testimony that hearing loss is related to exposure to acoustic trauma from bombing around the demilitarized zone in Vietnam, artillery strikes, and exposure to grenades during basic training. He reported that he did not have significant noise exposure prior to or after service. The Board finds that the Veteran has provided credible evidence of hazardous noise exposure in service consistent with the circumstances of his service. For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1000, 2000, 3000, or 4000 Hz are 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. The threshold for normal hearing, however, is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  The Veteran was afforded a VA examination in July 2018 which identifies a current bilateral hearing loss disability. During the VA audio examination, pure tone thresholds, in decibels, were as follows:       HERTZ       500 1000 2000 3000 4000 RIGHT 15 15 10 50 50 LEFT 25 25 15 30 55 Speech audiometry revealed speech recognition ability of 98 percent in the right ear and 98 percent in the left ear. The question before the Board is whether the Veteran’s current hearing loss is related to hazardous noise exposure in service. Service treatment records do not identify complaints of hearing loss in service, and do not identify hearing loss on in-service audiometric examinations. The Veteran denied having problems with hearing loss on an August 1968 Report of Medical History completed at separation. Service department audiometric readings prior to January 1, 1967 must be converted from American Standards Association (ASA) units to International Standards Organization-American National Standards Institute (ISO-ANSI) units. As such, audiometric data originally recorded using ASA standards will be converted to ISO-ANSI standard. With regard to audiometric data between January 1, 1967 and December 31, 1970, because it is unclear whether an August 1968 audiogram was recorded in using ASA units or ISO-ANSI units, the Board will consider the recorded metrics under both standards. In order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses. On a February 1966 enlistment audio examination, pure tone thresholds, in decibels, were as follows:       HERTZ       500 1000 2000 3000 4000 RIGHT 15 (30) 15 (25) 10 (20) NR 15 (20) LEFT 5 (20) 10 (20) 5 (15) NR 10 (15) During an August 1968 separation audio examination, pure tone thresholds, in decibels, were as follows:       HERTZ       500 1000 2000 3000 4000 RIGHT 10 (25) 5 (15) 5 (15) NR 5 (10) LEFT 10 (25) 5 (15) 5 (15) NR 5 (10) (continued on next page) The record shows no post-service evidence of a hearing loss disability until November 2013. In a November 2013 VA audiological evaluation, pure tone thresholds, in decibels, were as follows:       HERTZ       500 1000 2000 3000 4000 RIGHT 25 20 25 50 55 LEFT 25 20 20 40 55 Speech audiometry revealed speech recognition ability of 95 percent in the right ear and 95 percent in the left ear. During a January 2014 VA audiological evaluation, pure tone thresholds, in decibels, were as follows:       HERTZ       500 1000 2000 3000 4000 RIGHT 20 20 25 45 45 LEFT 25 25 35 45 50 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 96 percent in the left ear. The Veteran was diagnosed with sensorineural hearing loss. While the Veteran was afforded VA examinations in January 2014 and July 2018, the medical opinions, which did not provide a nexus between the Veteran’s hearing loss and service, did not address the Veteran’s testimony as to his hazardous noise exposure in service. The Board, therefore, remanded the appeal for a supplemental medical opinion to address the lay evidence of hazardous noise exposure in service. The November 2019 VA examiner noted the Veteran’s noise exposure described in hearing testimony, to include noise exposure from basic training, and from bombs, artillery strikes, and grenades in providing the supplemental opinion. After examination and a review of the record, the VA examiner opined that his bilateral hearing loss was less likely than not related to service. The examiner explained that a comparison of his induction and separation examinations showed no significant change in his hearing sensitivity, the Veteran’s separation examination showed that hearing was grossly within normal limits. The examiner also reasoned that during May 2013 VA outpatient treatment for hearing loss, the Veteran had noted a history of hearing loss for about 20 years, putting the onset of hearing loss many years after service separation. He agreed that noise exposure was conceded based on the Veteran’s military records and testimony, explaining that noxious noise could cause hearing loss depending on the level of loudness, proximity, and duration of exposure, but reasoned in this case that the evidence lead to the conclusion that it was not, at least as likely as not, that the Veteran’s current hearing loss was related to service. The Board finds the VA opinion is probative because it adequately addressed the nature and etiology of the Veteran’s bilateral hearing disability and included an adequate rationale for the opinion rendered based on the evidence of record, to include consideration of the Veteran’s in-service noise exposure, and the examiner’s own medical expertise and medical literature. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Allen v. Brown, 7 Vet. App. 439 (1995); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). Thus, the Board affords the nexus opinion significant probative weight. The Board finds that the preponderance of the evidence is against finding that the Veteran’s bilateral hearing loss is directly related to service. Therefore, a grant of direct service connection is denied 38 C.F.R. § 3.304.  The Board finds that even though bilateral hearing loss is a chronic disease listed under 38 C.F.R. § 3.309(a), the Veteran is not entitled to presumptive service connection for chronic diseases under 38 C.F.R. § 3.307 because his hearing loss was not shown to be chronic in service and did not manifest to a compensable degree within one year of separation from service. At the Veteran’s separation examination, he did not complain of any ear or hearing issues, nor did he have any complaints in service. Therefore, hearing loss was not shown to be chronic in service. Medical evidence of record shows that the Veteran was not diagnosed with sensorineural hearing loss until 2013, years after service separation. Hearing loss was not both chronic in service and continuous after service separation and did not manifest to a compensable degree within one year of service separation. For the reasons discussed above, the Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection for bilateral hearing loss. See 38 C.F.R. § 3.102; Gilbert, 1 Vet App. At 54.  REASONS FOR REMAND Entitlement to service connection for hypertension is remanded. Pursuant to an August 2020 Joint Motion for Partial Remand, the Board is remanding the appeal for hypertension for a supplemental medical opinion to address whether the hypertension is attributable to the Veteran’s exposure to Agent Orange in service. The matters are REMANDED for the following action: The Veteran is presumed to have been exposed to an herbicide agent in service. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s hypertension is at least as likely as not related to exposure to an herbicide agent in service. The clinician must provide a complete rationale for the opinion rendered. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christine C. Kung 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.