Citation Nr: 21013412 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 14-17 989 DATE: March 9, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT The Veteran’s bilateral hearing loss disability is at least as likely as not related to noise exposure in active service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss disability have been met. 38 U.S.C. § 1110, 5107; 38 C.F.R. § 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from January 1965 to January 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In May 2017, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. The Board remanded the claim in August 2016, February 2018, and October 2020 for additional development. Entitlement to service connection for bilateral hearing loss 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. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) competent evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also 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). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. As sensorineural hearing loss is considered a chronic disease for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including hearing loss, are presumed to have been incurred in service if they manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The threshold for normal hearing 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). For the 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 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. The Veteran asserts that he has hearing loss due to in-service noise exposure. Specifically, he testified that as a ship seaman, he was exposed to hazardous noise from gunner fire while aboard a ship. See May 2017 hearing transcript. In an October 2012 Los Angeles VAMC records, the Veteran’s physician noted significant military noise exposure in Vietnam. The Veteran was afforded a VA examination in May 2018 during which VA examiner opined that the Veteran’s tinnitus, which was since service connected, was at least as likely as not related to military noise exposure. However, the VA examiner indicated that he could not opine on the Veteran’s hearing loss because the test results were invalid. According to a June 2018 VA audiological examination report, right ear pure tone thresholds were 25, 30, 25, 30, and 40 decibels at 500, 1000, 2000, 3000, and 4000 Hertz, respectively. Left ear pure tone thresholds were 25, 25, 25, 35, and 45 decibels at the same frequencies. The Veteran was afforded another VA examination in September 2019. At the September 2019 VA examination, the examiner found the Veteran as having bilateral high frequency hearing loss. He also found the Veteran’s bilateral hearing loss was at least as likely as not caused by military service. However, the examiner found that the audiogram results of the September 2019 VA examination did not meet the criteria for hearing loss under 38C.F.R. §3.385, for VA purposes. Pursuant to the October 2020 Board remand, the October 2012 and February 2019 VA audiograms were associated with the record. The results are displayed in a graphical form that has not been converted to an appropriate numerical form. However, the interpretation of a graphical audiogram is a finding of fact to be made by the Board in the first instance. Kelly v. Brown, 7 Vet. App. 471 (1995). If the Board is unable to interpret the graphical audiogram due to unclear results or several possible interpretations, then the Board must remand the results for translations by an appropriate specialist. Savage v. Shinseki, 24 Vet. App. 259 (2011); Kelly, 7 Vet. App. at 471. In this instance, the Board finds that the graphical representation is clear and can be interpreted. Accordingly, a remand for interpretation of the audiograms is not necessary. According to the October 2012 VA audiogram, right ear pure tone thresholds were 30, 35, 35, 30, and 35 decibels at 500, 1000, 2000, 3000, and 4000 Hertz, respectively. Left ear pure tone thresholds were 40, 35, 30, 40, and 45 decibels at the same frequencies According to a February 2019 VA audiogram, right ear pure tone thresholds were 20, 35, 30, 25, and 25 decibels at 500, 1000, 2000, 3000, and 4000 Hertz, respectively. Left ear pure tone thresholds were 25, 30, 25, 35, and 40 decibels at the same frequencies. After a thorough review of the evidence and interpreting the evidence as in equipoise favoring the Veteran’s position, the Board finds that entitlement to service connection for bilateral hearing loss is warranted. Here the pure tone thresholds reported in October 2012 and June 2018 reflect bilateral hearing loss and the pure tone thresholds reported in in February 2019 reflect left ear hearing loss under 38C.F.R. § 3.385 for VA purposes. The September 2019 VA examiner opined that the Veteran’s bilateral hearing loss was at least as likely as not caused by military service. The Board concludes that the Veteran has a current bilateral hearing loss disability that is related to hazardous noise exposure in service. According to the December 2020 statement of the case, the RO explained part of the reasoning behind the denial of service connection for bilateral hearing loss was that the 2012 and 2019 audiological examiners did not use the Maryland CNC word test as required by VA regulations. The Board notes that for VA rating purposes, an examination for hearing impairment must meet the four requirements of 38 C.F.R. § 4.85(a). It must be conducted by a state-licensed audiologist, the examination must include a controlled speech discrimination test (Maryland CNC), the examination must include a puretone audiometry test, and the examination must be conducted without the use of hearing aids. To meet the criteria for a disability due to impaired hearing under 38 C.F.R. § 3.385, “for the purposes of applying the law administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. In order to grant entitlement to service connection, a veteran initially needs to meet only the diagnosed condition of hearing loss per VA regulations under 38 C.F.R. § 3.385, which offers the alternative of meeting the threshold auditory decibel loss or diminished speech recognition scores under the Maryland CNC. The Veteran met threshold auditory decibel loss under the October 2012, June 2018, and February 2019 audiograms. The Board further notes that speech discrimination tests were conducted according to the October 2012 and February 2019 VA treatment reports and noted to be good bilaterally and good in the left ear and fair in the right ear, respectively. However, it is unclear whether the Maryland CNC Test was used such was not included in the audiogram received. Nonetheless, remand is not necessary at this time as service connection is being granted.   Upon review of the record, the Board finds that the Veteran’s current bilateral hearing loss disability is related to active service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for bilateral hearing loss is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Williams, 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.