Citation Nr: 21006605 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 13-21 762A DATE: February 4, 2021 ORDER Service connection for bilateral hearing loss is granted. FINDINGS OF FACT 1. The Veteran currently has bilateral hearing loss disability that meets the criteria of 38 C.F.R. § 3.385. 2. The Veteran's bilateral hearing loss is related to service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, had active service from March 1958 to June 1962. He also had subsequent service in the U. S. Naval Reserve. The Veteran testified at a videoconference before the undersigned Veterans Law Judge in August 2016. A transcript of the hearing is of record. This matter was before the Board of Veterans’ Appeals (Board) in November 2016, at which time the Board denied service connection for hearing loss and granted service connection for tinnitus. The Veteran subsequently appealed the denial of service connection for bilateral hearing loss to the United States Court of Appeals for Veterans Claims (Court). In a May 2018 memorandum decision, the Court vacated the November 2016 Board denial and remanded the matter for actions consistent with the Court decision. In January 2019, the Board remanded this matter for actions consistent with the Court memorandum. The Board again remanded this matter in August 2020 for further development. The requested development has been completed and the matter is now ready for appellate review. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Sensorineural hearing loss is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provision of 38 C.F.R. § 3.303(b) apply to those claims. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303 (b). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Sensorineural hearing loss will be presumed to have been incurred in service if manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For purposes of applying VA laws, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 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. VA regulations do not preclude service connection for hearing loss which first met VA's definition of disability after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a) (2012). In this case, the Board has thoroughly reviewed all the evidence in the Veteran's file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). In evaluating the evidence in any given appeal, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d. 372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The record indicates that the Veteran performed duties as a ship electrician's mate aboard the USS Great Sitkin (AE17) during his active service. At his Board hearing, the Veteran testified that his duties included regularly standing switchboard watch in the engine room while the ship was underway. He indicated that the ship was frequently underway between 1960 and 1962, and that the engine room would become very noisy during these periods. During his switchboard watches, the Veteran reported that the 300-kilowatt generator would make high pitch noises next to his left ear. In his December 2012 notice of disagreement, the Veteran also indicated that, during general quarters and gunnery practice, his battle station was the emergency generator room. He reported that the emergency generator room was right under the aft 3'' gun mount, which often caused significant noise. The Veteran also stated that the medical evidence of record did not demonstrate a diagnosis of hearing loss until approximately 20 years after he separated from active service, but that the "age related weakening of my hearing you might say that brought out my hearing loss, which was actually initiated during my service." The Board notes that the Veteran has a current diagnosis of bilateral sensorineural hearing loss and that the Veteran was exposed to significant noise exposure during his active service. The Board finds the Veteran's statements regarding noise exposure during his active service, particularly related to his shifts in the engine room, to be credible. Service treatment records associated with the claims file reveal that during the period of active service, there was no audiometric testing performed other than whispered and spoken voice testing, which while “normal” at 15/15 for both ears does not provide a basis for either a grant or denial. However, Naval Reserve records associated with the claims file reveal that at the time of a May 1968 Annual Reserve examination, the Veteran had decibel level readings of 5, 5, 5, -, and 5 for the right ear and 5, 5, 5, -, 5 for the left ear at 500, 1000, 2000, 3000, and 4000 Hertz. On the May 1968 report of medical history, the Veteran checked the “no” box when asked if he had or had ever had hearing loss. At the time of an August 1969 Reserve examination, the Veteran had decibel level readings of 0, 0, 0, 0, and 0 for the right ear and 0, 0, 0, 0, and 0 for the left ear at 500, 1000, 2000, 3000, and 4000 Hertz. At the time of a June 1981 examination, the Veteran had decibel level readings of 15, 5, 5, 10, 20, and 15 for the right ear and 10, 5, 5, 10, 30, and 60 for the left ear at 500, 1000, 2000, 3000, 4000, and 6000 Hertz. The Board does note that during the Veteran’s Reserve time, numerous examinations were performed; however, many of these examinations did not provide for audiometric testing, only whispered/spoken voice testing. There were no complaints or findings of hearing loss reported in the years immediately following the Veteran’s separation from his Reserve service. In conjunction with his claim, the Veteran submitted a September 2006 private audiogram which demonstrated decibel level readings of 35, 40, 50, 55, and 70 in the right ear and 30, 30, 50, 65, and 70 in the left ear at 500, 1000, 2000, 3000, and 4000 Hertz. Speech discrimination scores of 80 percent in the right ear and 64 percent in the left ear were reported. At the time of an August 2011 VA examination, the Veteran was noted to have decibel level readings of 35, 40, 50, 65, and 80 in the right ear and 35, 45, 65, 70, and 80 in the left ear at 500, 1000, 2000, 3000, and 4000 Hertz. Speech discrimination scores of 56 percent in the right ear and 40 percent in the left ear were reported. The examiner supplied a negative opinion at that time, which the Board finds is of little probative value as it relied upon whispered and spoken voice testing results. As noted above, in conjunction with the May 2018 Court Memorandum decision, the Board remanded this matter for additional development in January 2019. In its remand, the Board requested that the Veteran be scheduled for a VA examination to determine the nature and etiology of any current bilateral hearing loss. The examiner was requested to render the following opinions: (a) Was it as likely as not (50 percent probability or greater) that any current bilateral hearing loss had its onset in service or is otherwise related to service? (b) Was it as likely as not (50 percent probability or greater) that any bilateral hearing loss was caused by the service-connected tinnitus? (c) If not, was it at least as likely as not (50 percent probability or greater) that any current bilateral hearing loss is aggravated by the service-connected tinnitus? At the time of a December 2019 VA examination, the Veteran was noted to have decibel level readings of 75, 90, 105+, 105+, and 105+ in the right ear and 95, 100, 105, 105+ and 105+ in the left ear at 500, 1000, 2000, 3000, and 4000 Hertz. Speech discrimination scores of 0 percent in the right ear and 0 percent in the left ear were reported. The examiner indicated that it was not as likely as not that any current left or right ear hearing loss was related to service. The examiner stated that there was no significant permanent shift in hearing thresholds beyond test variability from entrance to annual physical done May 15, 1968 (there was no separation audiogram available), which was objective evidence of no permanent auditory damage on active duty from conceded noise. There was no report of complaint/treatment for hearing decrease in service treatment records or at separation. The examiner indicated that although noise exposure was conceded and the relationship of noise, auditory damage and hearing loss was well-established, auditory damage and hearing loss were not conceded based on noise alone. There had to be a nexus of auditory damage to relate current hearing loss to military noise and not another etiology. The evidence was against a nexus in this case, therefore, it was less likely than not that the hearing loss was related to military noise exposure. The examiner further opined that the claimed condition was less likely than not (less than 50 percent probability) proximately due to or the result of Veteran’s service-connected condition. He stated that the hearing exam of May 1968 showed normal hearing eight years after Veteran's stated onset of tinnitus (1961). There was no connection between Veteran's tinnitus and his current hearing loss. They were two separate non-related issues. The examiner also indicated that the Veteran’s hearing loss was not aggravated by his service-connected tinnitus. He stated that tinnitus did not cause hearing loss, it was a separate diagnosis unto itself. In its August 2020 remand, the Board noted that while the Veteran was afforded the requested examination and the opinions were rendered, the examiner did not address the contentions of the Veteran that his hearing loss was related to his period of service and the duties that he performed in service and that he had had hearing problems since service. In an October 2020 addendum opinion, the VA examiner indicated that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner observed that no valid pre or post service testing was available for the Veteran’s active duty from March 1958 to June 1962, only a whisper test, which was not a reliable indicator of hearing loss. However, Entrance Exam for Enlistment into USNR of August 1969, with complete audiogram, showed no hearing loss and no complaint of hearing loss. This was clear objective evidence of no permanent auditory damage from conceded noise seven years prior while on active duty. The examiner stated that when asked during the December 2019 examination about the onset of his hearing loss, the Veteran stated that it had been a problem since before 1993 with no more specific determination than that. He stated that the Veteran’s current contention that his hearing problems had been present since his service years were simply not substantiated by the evidence available in his service treatment records. In an October 2020 report, the Veteran’s private audiologist, R. H., Au.D., indicated that based on the Veteran’s related patterns in audiometry results as well as the information he provided regarding his noise exposure while in the military, it was his opinion that the Veteran’s military noise exposure was at least as likely as not a contributor to his bilateral hearing loss, although he could not rule out other possible factors or causes such as his age, cardiovascular disease, diabetes, recreational noise, heredity, TV Amplifiers etc., which may also have contributed. Although the December 2019/November 2020 VA examiner found that it was less likely that the Veteran's hearing loss was related to his period of service, he did note and concede the acoustic trauma to which the Veteran was exposed in service. While it is true that objective testing was within “normal” limits during service, this was on whispered and spoken voice testing. Moreover, this does not account for the demonstrated functional impairment reported in lay evidence, including statements and testimony from the Veteran. The Court's ruling in Hensley does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The lack of evidence showing the Veteran had hearing loss during his active service is not fatal to his claim for service connection. The laws and regulations do not strictly require in-service complaint of, or treatment for, hearing loss in order to establish service connection. While the examiner notes the results in 1969 as the basis for his opinion, this still does still not account for the Veteran’s claimed hearing loss prior to this time. In contrast, the Veteran’s private audiologist, based upon review of the records, statements from the Veteran, and the audiometric results, found that it was at least as likely as not that the Veteran’s hearing loss was related to his period of service. Given the foregoing, the opinions are at least in equipoise as to the whether the Veteran’s hearing loss had its onset in service. (Continued on the next page)   The Board does note some discrepancy in the record as to the onset of hearing loss; however, given the Veteran’s inservice occupation, his conceded exposure to noise, and his accounts of onset of inservice hearing loss on numerous occasions, the Board finds his statements credible as to the onset of hearing loss in service. Given the Veteran's current hearing loss; his conceded noise exposure in service; his credible reports of symptoms of hearing loss in service; his in-service military occupational specialty; his reports of continuous symptoms; and the medical opinions being in equipoise, reasonable doubt must be resolved in favor of the Veteran. As such, service connection is warranted for bilateral hearing loss disability. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. S. Kelly, 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.