Citation Nr: 21011171 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 18-31 780 DATE: March 1, 2021 ORDER Entitlement to service connection for right ear hearing loss is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for left ear hearing loss is remanded. FINDINGS OF FACT 1. The Veteran’s right ear hearing loss disability manifested in service. 2. The Veteran’s tinnitus manifested in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right ear hearing loss are met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1965 to September 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision by an agency of original jurisdiction (AOJ) of the Department of Veterans Affairs (VA). The Veteran requested a Board hearing by live videoconference. See June 2018 VA Form 9. He was originally scheduled for a December 2020 hearing, which was postponed. He was rescheduled for a February 2021 hearing and given the option to attend at his local VA regional office or to have a virtual hearing at any location. See October 2020 Correspondence; December 2020 Correspondence. VA’s legacy appeals tracking system indicates that the Veteran failed to report for his February 2021 hearing, and the record does not show that the Veteran has demonstrated good cause for failure to report or that he has requested a new hearing. See also February 2021 Informal Hearing Presentation at 2 (indicating that representative expects Board will find Veteran failed to report without good cause). As the Veteran failed to report for his Board hearing and good cause is not shown, the Board finds that his hearing request is deemed withdrawn. As noted below, a portion of the Veteran’s claim is being remanded; if the Veteran’s claim is not granted in full by the AOJ on remand, he may request another Board hearing following the issuance of a Supplemental Statement of the Case. See Quinn v. Wilkie, 31 Vet. App. 284 (2019). 1. Entitlement to service connection for right ear hearing loss is granted. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may not be established for disability due to impaired hearing unless the auditory threshold in any of the frequencies 500, 1000, 2000, 3000 or 4000 hertz is 40 decibels or greater; or the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000 or 4000 hertz are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Certain chronic diseases, including organic diseases of the nervous system such as organic hearing loss, will be presumed related to service if they were shown as chronic in service. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 C.F.R. §§ 3.307, 3.309. The Veteran presented for an examination with a VA-contracted examiner in August 2015. The examiner diagnosed bilateral hearing loss for VA compensation purposes, with right ear mixed hearing loss and left ear sensorineural hearing loss. See August 2015 Audiological Examination Report. In August 1965, the Veteran presented for a pre-induction examination, including an audiological assessment. See Service Treatment Records (STRs). The pre-induction audiogram measured the following hearing thresholds, in decibels, with frequencies that were not tested indicated by an “X”: Hertz 250 500 1000 2000 3000 4000 6000 8000 Right X 0 0 5 X 0 X X Left X 5 0 0 X 0 X X In October 1965, the Veteran presented for an examination at service entrance, including an audiological assessment. See STRs. The entrance audiogram measured the following hearing thresholds, in decibels, with frequencies that were not tested indicated by an “X”: Hertz 250 500 1000 2000 3000 4000 6000 8000 Right X 35 25 10 0 5 35 X Left X 10 0 0 0 5 35 X In July 1967, the Veteran presented for a separation examination. Notably, and as reported by the Veteran, this examination occurred two months prior to his separation from service and he was not examined at separation. See September 2015 Notice of Disagreement (NOD); see also STRs (including signed statement by Veteran that his separation examination was accomplished more than three days prior to his separation from service and that, to the best of the Veteran’s knowledge, his physical condition has not changed). The July 1967 separation examination included an audiogram that measured the following hearing thresholds, in decibels, with frequencies that were not tested indicated by an “X”: Hertz 250 500 1000 2000 3000 4000 6000 8000 Right 10 25 10 10 X 10 X 0 Left 25 15 10 5 X 0 X 5 The Board takes notice at the time of the Veteran’s July 1967 separation examination, different standards were in simultaneous use by the United States Armed Forces when recording hearing thresholds at examinations. Here, it is unclear whether the July 1967 hearing thresholds were recorded using American Standards Association (ASA) units or International Standards Organization-American National Standards Institute (ISO-ANSI) units. Thus, the Board will consider the recorded metrics under both standards, relying on the unit measurements most favorable to the Veteran’s appeal. While not applicable to the Veteran’s appeal, the Board observes that with respect to VA examinations and VA records, audiological reports were routinely converted from ISO-ANSI results to ASA units until the end of 1975 because the regulatory standard for evaluating hearing loss was not changed to require ISO-ANSI units until September 9, 1975. In light of the above, and where necessary to facilitate data comparison for VA purposes in the decision below, including under 38 C.F.R. § 3.385, audiometric data originally recorded using ASA standards will be converted to ISO-ANSI standard by adding between 5 and 15 decibels to the recorded data as follows: Hertz 250 500 1000 2000 3000 4000 6000 8000 add 15 15 10 10 10 5 10 10 Accordingly, after converting the units found in the July 1967 examination report, the Veteran’s separation audiological examination results are as follows: Hertz 250 500 1000 2000 3000 4000 6000 8000 Right 25 40 20 20 X 15 X 10 Left 40 30 20 15 X 5 X 15 After conversion, the Veteran’s separation audiogram shows that he had right ear hearing loss at separation, as his separation audiogram shows a 40-decibel hearing threshold. Accordingly, hearing loss was shown in service and the Veteran has current hearing loss, presumptive service connection is warranted unless an intercurrent etiology is shown. The Board observes that the August 2015 examiner noted that the “25-decibel” right ear threshold shift at 500 hertz between service entry and separation was most likely a transient middle ear condition unrelated to noise exposure in service. However, this does not weigh against the claim, as the examiner’s opinion is not based on an accurate factual basis. In this regard, a shift of 25 decibels at 500 hertz is only consistent with the examiner comparing the Veteran’s unconverted July 1967 examination with his August 1965 pre-induction examination. Thus, the examiner failed to consider the October 1965 examination at service entry, as well as the Veteran’s post-conversion separation audiogram thresholds. Indeed, the examiner opined that the Veteran’s right ear hearing loss was less likely than not due to service as “there was no hearing loss present at separation from the military.” While the absence of hearing loss in service is not, standing alone, a sufficient reason to deny a claim, the Board observes that this statement is inaccurate, as after conversion the Veteran is shown to have had right ear hearing loss in service. The Board acknowledges that the Veteran is shown to have had a 35-decibel hearing threshold in his right ear at service entry. However, he was assigned an “H1” profile and his hearing thresholds do not constitute hearing loss for VA purposes. Thus, he is considered sound at service entry, and in any event any increase in pre-existing hearing loss is presumed to be the result of aggravation in service, in the absence of affirmative evidence to the contrary. Accordingly, presumptive service connection for right ear hearing loss is warranted. The Veteran’s left ear hearing loss is discussed below in the remand section. 2. Entitlement to service connection for tinnitus is granted. The Veteran reported that his tinnitus began in service as a result of firing weapons and has continued to the present. See September 2015 NOD. The Board agrees. Tinnitus due to acoustic trauma is an organic disease of the nervous system subject to presumptive service connection. See Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). As noted above, presumptive service connection is warranted for chronic diseases that manifest in service. The Veteran is competent to report the presence of tinnitus and his report is credible. Moreover, his military occupational specialty was field artillery crewman. See Military Personnel Records. Thus, acoustic trauma in service is conceded as consistent with the circumstances of the Veteran’s service. See 38 U.S.C. § 1154(b). The August 2015 VA examiner noted the Veteran’s report of tinnitus that began in service, diagnosed current recurrent tinnitus, and stated that tinnitus is “mostly in the right ear and constant.” The examiner opined that tinnitus is less likely than not due to military noise exposure and opined that the Veteran’s right ear tinnitus is most likely due to otosclerosis and/or middle ear abnormality, not noise exposure. The VA examiner’s statement that the Veteran’s tinnitus is mostly on the right shows that the Veteran has bilateral tinnitus. Thus, even assuming that the examiner’s opinion that right-sided tinnitus is not due to military noise exposure was adequate, which it is not, the evidence would not weigh against conceding that his less-severe left-sided tinnitus was due to military noise exposure. Moreover, the Veteran is in receipt of service connection for his right ear hearing loss, and thus the VA examiner’s opinion would support an award of right ear tinnitus on a secondary basis. The VA rating schedule includes only a single 10 percent rating for tinnitus, and no higher, notwithstanding whether tinnitus it is recurrent or constant, unilateral or bilateral. Thus, the Veteran would be entitled to the same schedular rating even if the Board granted service connection only for his right ear on a secondary basis. However, as an award of service connection on a direct basis is supported and is most favorable to the Veteran, the Board will award direct service connection for tinnitus without limiting the award to a single ear. REASONS FOR REMAND 3. Entitlement to service connection for left ear hearing loss is remanded. Remand is necessary to correct a pre-decisional duty to assist error. As noted above, the examiner did not convert the Veteran’s separation audiogram, and thus her opinion is based on an inaccurate factual basis (such as whether or not a threshold shift was present). On remand, an addendum opinion should be secured for the Veteran’s left ear that is based on converted audiogram results. Moreover, the Board notes that the Veteran’s July 1967 examination occurred approximately two months prior to his separation from service. On remand, the examiner should consider this fact. The Board acknowledges the Veteran’s objections to the August 2015 examiner and his request for an examination with a different examiner, preferably at a VA medical center. See September 2015 NOD. Unfortunately, the VA no longer schedules examinations with VA audiologists. However, the Board acknowledges the inadequacy of the August 2015 examination and will direct that a different VA contractor provide the requested addendum opinion. Finally, the Board acknowledges there are additional arguments set forth in the persuasive brief submitted by the Veteran’s representative. As this issue is being remanded for an addendum opinion on a different basis (and as the other issues are full grants of the benefits sought on appeal), the Board will not address the specifics of the representative’s other arguments. The matters are REMANDED for the following action: Obtain an addendum opinion from an examiner other than the August 2015 examiner as to the nature and etiology of the Veteran’s left ear haring loss. After reviewing the claims file, the examiner should address the following: Is it at least as likely as not (50 percent or greater probability) that the Veteran’s left ear hearing loss is proximately due to service, to include as a result of conceded acoustic trauma therein? In addressing this opinion, the examiner must rely on these converted July 1967 audiogram results (and not the July 1967 audiogram results shown in the Veteran’s STRs): Hertz 250 500 1000 2000 3000 4000 6000 8000 Right 25 40 20 20 X 15 X 10 Left 40 30 20 15 X 5 X 15 The examiner is advised that the Veteran is presumed to be sound at service entry and that the Board has conceded military noise exposure in service related to the Veteran’s military occupational specialty in field artillery. The examiner is advised that the absence of hearing loss in service is not, standing alone, a sufficient reason to deny service connection and that a negative etiology opinion premised solely on this basis will be returned as inadequate. Indeed, the examiner is advised that that the July 1967 audiogram did not measure hearing loss at 3000 hertz and that frequency alone could show hearing loss for VA purposes in service. Moreover, the Veteran separated from service in September 1967, more than two months after his July 1967 separation audiogram. Thus, any opinion that left ear hearing loss was not present at separation must not rely solely on the facial results of the July 1967 audiogram. A complete rationale must be provided for all opinions. If the requested opinion cannot be provided without resorting to speculation, the examiner should so state and explain why an opinion would be speculative. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.M. Badaczewski, Associate 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.