Citation Nr: 21011584 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 17-04 715A DATE: March 2, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran serviced on active duty in the U.S. Air Force from August 1982 to May 1986. This matter comes before the Board of Veterans’ Appeals (Board) from a March 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied service connection for bilateral hearing loss. In April 2014, VA received the Veteran’s Notice of Disagreement. Following the issuance of a Statement of the Case (SOC) in December 2016, the Veteran perfected a timely appeal via his submission of a VA Form 9 in January 2017. In August 2019, the Veteran testified at a video hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is a part of the record. In December 2019, the Board remanded the matter for further evidentiary development, to include a new VA examination. In September 2020, the RO issued a Supplemental Statement of the Case (SSOC) and the Veteran’s appeal is now returned to the Board for further appellate proceedings. 1. Entitlement to Service Connection for Bilateral Hearing Loss The Veteran contends that his current bilateral hearing loss is the result of in-service noise exposure, an in-service left ear infection, and an in-service left ear injury. See e.g. August 2019 Transcript of Hearing, pages 5-8. 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, including sensorineural hearing loss (an organic disease of the nervous system), 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). In addition to the criteria set forth above, service connection for impaired hearing is subject to the additional requirement of 38 C.F.R. § 3.385, which provides that impaired hearing is a disability only if (1) at least one of the thresholds for the frequencies of 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; (2) the thresholds for at least three of the frequencies are greater than 25 decibels; or (3) speech-recognition scores using the Maryland CNC Test are less than 94 percent. See also Hensley v. Brown, 5 Vet. App. 155 (1993). In pertinent part, the Veteran’s service treatment records show that at his January 1982 enlistment examination, audiometric testing showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 0 5 5 LEFT 5 5 5 20 25 The Veteran’s in-service treatment records show that in December 1982, he was issued ear defenders, instructed on their use, and advised that repeated exposure to potentially hazardous noise may cause damage to hearing. A December 1982 reference audiogram was also performed at that time and showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 0 10 15 LEFT 5 5 0 20 25 At an April 1983 reference audiogram showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 0 5 15 LEFT 5 5 5 20 35 The audiologist noted that there had been no significant threshold shifts noted. In April 1984, the Veteran sought emergency treatment for pain and swelling around his left ear. He reported that he had been cleaning a boiler and had gotten “chemical soot” in his left ear. The impression was chemical burn, left ear, with otitis externa. On follow-up two days later, he reported that his ear was still painful. The impression was left ear otitis externa and the Veteran was advised to continue ear drops and antibiotics. In July 1984, the Veteran complained of recurrent episodes of left ear pain lasting several days to a week. He denied other symptoms. He reported that he does box and had had jaw trauma in the past. Examination showed that the tympanic membranes were clear and the left ear canal was mostly clear from resolving old left otitis externa. The impressions included TMJ syndrome and resolving left ear otitis externa. At a June 1984 examination, audiometric testing showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 5 10 LEFT 0 0 0 15 30 At a July 1985 periodic examination, audiometric testing showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 5 15 LEFT 5 0 0 15 30 In addition, the Veteran’s ears were examined and determined to be normal. At October 1985 and March 1986 occupational examinations, the Veteran indicated that he had noise exposure prior to service while working as a welder, in construction, and on an assembly line. He also reported noise exposure while in the Air Force working in a heat plant. He indicated that in the past year, he had not had pain in his ears, noticed a decrease in his ability to hear, or experienced ringing or unusual sounds in his ears. The Veteran’s military personnel record reflect that his military occupational specialty was heating system specialist. At his August 2019 Board hearing, he testified that his duties consisted of mostly working in boiler rooms and hangers. In these environments, he recalled being exposed to loud noises, including from generators and aircraft engines. See e.g. August 2019 Transcript of Hearing, pages 5-7. The post-service record on appeal includes clinical records which are negative for complaints or findings of hearing loss or other ear trouble. In connection with his claim of service connection for bilateral hearing loss, the Veteran was afforded a VA examination in March 2014. Audiometric testing showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 25 20 45 LEFT 25 25 20 25 65 Speech audiometry revealed speech recognition ability of 98 percent in the right ear and of 100 percent in the left ear. After examining the Veteran and reviewing the record, the audiologist diagnosed the Veteran as having sensorineural hearing loss. The audiologist opined the bilateral hearing loss was not caused by or the result of an event in military service because there was no discernable change in the Veteran’s hearing acuity between enlistment and separation. Pursuant to the Board’s remand instructions, a September 2020 addendum opinion addressing the etiology of the Veteran’s bilateral hearing loss was obtained. After reviewing the record, the examiner again concluded it is less likely as not that the present hearing loss occurred in or was aggravated by active service. The examiner again reasoned that this was because there was not a permanent or significant threshold shift in either ear during service. Additionally, she explained that otitis externa, once resolved, does not cause permanent hearing loss. Unfortunately, the September 2020 opinion is inadequate as the examiner again failed to address the question as to whether it is at least as likely as not that the Veteran’s current hearing loss, first identified years after his discharge from active duty, is causally related to his in-service noise exposure. As previously explained by the Board, the absence of in-service evidence of a hearing disability is not fatal to a claim of service connection for hearing loss. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Rather, evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As such, a new opinion should be obtained. See also Stegall v. West, 11 Vet. App. 268 (1998). The matter is REMANDED for the following action: Obtain a medical opinion from an appropriate clinician with regard to the nature and etiology of the Veteran’s current hearing loss disability. The claims file must be made available to the clinician rendering the requested opinion. If the clinician determines that an examination is necessary, one should be scheduled. Following review of the claims file, the clinician should provide an opinion, with supporting rationale, as to whether it is at least as likely as not that the Veteran’s current hearing loss was incurred in service or is otherwise causally related to his active service or any incident therein, to include conceded military noise exposure. The examiner is informed that military noise exposure has been established as the Veteran’s MOS was heating system specialist and his service treatment records reflect that he was issued hearing protection because he worked in an environment with potentially hazardous noise exposure. The examiner is further informed that the lack of evidence of in-service hearing loss cannot be the sole basis for the rationale. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Penn, 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.