Citation Nr: 21013625 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 15-11 046 DATE: March 10, 2021 ORDER Entitlement to service connection for left ear hearing loss disability is granted. Entitlement to service connection for right ear hearing loss disability is denied. FINDINGS OF FACT 1. The Veteran has hearing loss levels in the left ear that meet the definition of hearing loss for Veterans Affairs purposes. 2. The Veteran has hearing loss levels in the right ear that do not meet the definition of hearing loss for Veterans Affairs purposes. 3. The Veteran had hazardous noise exposure during active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for left ear hearing loss disability have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for entitlement to service connection for right ear hearing loss disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1967 to April 1971. 1. Entitlement to service connection for left ear hearing loss disability 2. Entitlement to service connection for right ear hearing loss disability The Veteran contends that due to noise exposure during active service he developed bilateral hearing loss. After a thorough review of the evidence of record, the Board finds that entitlement to service connection for hearing loss disability for the left ear is warranted but not for the right ear. 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). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The threshold for normal hearing is from 0 to 20 decibels. 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 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 Board concludes that the Veteran has a diagnosis of left ear hearing loss that meets the criteria of impaired hearing under VA regulations, but does not have a current diagnosis of right ear hearing loss disability that meets these criteria and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). While the Veteran believes he has a current diagnosis of bilateral hearing loss, and indeed may have trouble hearing as he has stated to the Board, he is not competent to provide a diagnosis that meets with VA criteria for hearing loss. The issue is medically complex, as it requires diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The available diagnostic testing shows that the Veteran has left ear hearing loss that meets the criteria for impaired hearing but not for the right ear. Consequently, the Board gives more probative weight to the competent medical evidence. The Veteran served four years active service in the United States Air Force. In lay statements and testimony, the Veteran has explained that he was exposed to hazardous noise such as heavy machinery. Part of his duties was to maintain roadways and similar functions and his position also resulted in frequent proximity to engaged aircraft engines. The Veteran’s DD-214 shows an Air Force Specialty Code of construction worker, currently with a related code of 3E2X1. According to the Department of Defense noise exposure probability listing, that AFSC has a noise exposure rating of moderately probable. On the authorized audiological evaluation in December 2014, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 15 30 LEFT 10 10 15 25 60 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 94 percent in the left ear. As the right ear levels do not show auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or that the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or that speech recognition score using the Maryland CNC Test is less than 94 percent, the Veteran’s right ear hearing loss does not meet the criteria for a current hearing loss disability. 38 C.F.R. § 3.385. The Veteran’s left ear has a 60 decibel threshold at 4000 Hertz, which meets the criteria for hearing loss disability. The Veteran provided private treatment records dated March 2015 with an opinion by a private doctor that he had a current diagnosis of hearing loss and that such hearing loss was related to active service based on the Veteran’s stated noise exposure and lack of hearing protection during service. These treatment records do not contain numerical testing results and CNC testing results, but merely a diagnosis of bilateral hearing loss. This doctor also noted that there was a threshold shift in active service between the Veteran’s entrance and exit examinations. The Board notes that during the Veteran’s service, the standard measuring system for hearing loss evaluation switched from ASA to ISO. According to the 2014 VA medical doctor, after adjusting for this change, there was not a significant shift in hearing thresholds. Even if no hearing loss or auditory shifts are noted in the service treatment records, the Court has held section 3.385 does not preclude an award of service connection for a hearing disability established by post-service audiometric and speech-recognition scores, even when hearing was found to be within normal limits on audiometric and speech-recognition testing at the time of separation from service. Hensley v. Brown, 5 Vet. App. 155, 157 (1993); see also Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). This point is moot in relation to the current Veteran’s case, as the Board is granting entitlement to service connection for the left ear and the Veteran’s right ear does not show a current disability level meeting the criteria for VA purposes of hearing impairment. The Board remanded this case in 2018 to obtain a new VA hearing loss examination. The Veteran, through his representative, provided a statement dated March 2019 that the Veteran will no longer be able to attend medical examinations due to increased severity of Parkinson’s disease and declined to attend the scheduled VA hearing loss examination. The case was returned to the Board without new hearing loss evaluation testing results. Accordingly, the Board finds that remanding the case again would not achieve the previously stated goal of obtaining a more recent numerical evaluation of the Veteran’s hearing loss as compliance by the RO with a new remand order for a VA hearing loss examination would not be possible. Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order). Upon review of the evidence, the Board finds that the evidence is in equipoise as to whether the Veteran’s left ear loss disability was a direct result of his exposure to noise during active service. The December 2014 VA examiner stated that it was not at least as likely as not that the Veteran’s hearing loss was related to active service based on the adjusted ASA and ISO hearing loss testing results for the Veteran’s entrance and exit medical examinations which did not show significant threshold shifts. The Veteran’s private treatment doctor provided a medical opinion that both the Veteran’s tinnitus (for which the RO granted entitlement to service connection in a 2015 rating decision) and the Veteran’s hearing loss were related to noise exposure during active service. The Board notes that the RO initially denied entitlement to service connection for tinnitus, but later granted it in a 2015 rating decision based on equipoise of these medical opinions.   Therefore, the evidence in this case is evenly balanced enough to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, the criteria for service connection for a left ear hearing loss disability have been met. Accordingly, the Board finds that entitlement to service connection for left ear hearing loss disability is granted and entitlement to service connection for right ear hearing loss is denied. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Miller 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.