Citation Nr: 21007869 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 19-17 533 DATE: February 11, 2021 ORDER Service connection for bilateral hearing loss is granted. FINDING OF FACT The evidence is in equipoise as to whether the Veteran’s currently diagnosed bilateral hearing loss is related to an incident of service. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran’s favor, the criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110; 1131; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1961 to October 1963. In August 2019, he had a hearing with the undersigned Veteran’s Law Judge (VLJ). In November 2019, February 2020, and October 2020, the Board remanded the issues listed on the title page. Bilateral hearing loss The Veteran maintains that he has bilateral hearing loss that had its onset during military service. He points out that he was exposed to noise from heavy machinery while performing his military duties as a surface machine operator. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303 (a). In regard to element (1), current disability, post-service VA examinations indicate diagnoses of bilateral hearing loss. In regard to element (2), in-service incurrence, the Veteran contends he has current hearing loss is due to military service to include his duty as a surface machine operator. He is capable of describing and reporting his noise exposure in service. In regard to element (3), causal relationship, the record contains VA contract medical opinions which are against the claim. In providing the opinion, the audiologists indicated that the Veteran had normal hearing and there was no evidence of hearing loss many years after service. However, the Board noted that under governing case law, the absence of hearing loss in service is not always fatal to a claim. See 38 C.F.R. § 3.303 (d); see also Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Further, strictly speaking there is evidence of hearing loss according to Hensley. The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Id. But before service connection may be granted for hearing loss, it must be of a particular level of severity. For purposes of applying the laws administered by VA, impaired hearing only will be considered to be a ratable disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. According to the holding in Hensley, however, it is not necessary the Veteran have had this degree of hearing loss while in service, or even within the one-year presumptive grace period following his discharge from service for the initial manifestation of sensorineural hearing loss, in particular, to the minimally required degree of at least 10-percent disabling as an organic disease of the nervous system to warrant presuming it was incurred in service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309(a). Instead, he need only now have this degree of hearing loss, or at least at some point since the filing of his claim, and have evidence linking this present-day hearing loss to his military service, such as to exposure to excessively loud noise while in service, as opposed to other unrelated or intercurrent factors or causes. See also Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The record contains a September 1963 separation audiogram, which, does not specify whether ASA or ISO units were used. VA policy indicates that, for examinations conducted prior to January 1, 1967, the rater should assume ASA units (unless the record shows the unit that was used), and convert to ISO. The Veteran’s separation test shows 10 decibels at each tested range, which were 250, 500, 1000, 2000, 4000 Hertz. After conversion to ISO units, the Veteran’s right and left ear showed a 25 decibel loss at both 250 and 500 Hertz. The threshold for normal hearing is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Accordingly, the Veteran’s separation examination, after conversion from ASA to ISO, does not show normal hearing. In the most recent remand, the Board requested an opinion that addressed the fact that the Veteran’s hearing loss was not normal at separation; however, the contract examiner continued to reiterate that the Veteran’s hearing was normal at separation from military service. Furthermore, this examiner did not comment on the Veteran’s reports of inservice hearing problems. In Dalton v. Nicholson, 21 Vet. App. 23 (2007), the United States Court of Appeals for Veterans Claims (Court) determined a VA compensation examination and opinion were inadequate where the examiner did not comment on the Veteran’s report of in-service injury and, instead, relied on the absence of evidence in the Veteran’s STRs to provide a negative opinion. The Board acknowledges that his military noise exposure does not have to be the sole contributor to the development of hearing loss. This VA examiner did not rule out the fact that his in-service exposure may have, in part, been a contributing factor in the development of hearing loss. As such, the Board finds that the evidence regarding the third element, causal relationship, is in relative equipoise. Resolving reasonable doubt in the Veteran’s favor, the Board finds that the third element is satisfied. As all three elements have been satisfied, the Board finds that service connection for bilateral hearing loss is warranted. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.D. Jackson, 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.