Citation Nr: 21014371 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 18-12 198 DATE: March 12, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT It is just as likely as not the Veteran’s bilateral (left and right ear) hearing loss is related or attributable to hazardous noise exposure during his service and consequent injury (acoustic trauma). CONCLUSION OF LAW Resolving all reasonable doubt in his favor, the criteria are met for entitlement to service connection for bilateral hearing loss. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1971 to February 1973. This appeal to the Board of Veterans’ Appeals (Board) is from a November 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified in support of this claim during a hearing before the undersigned Veterans Law Judge (VLJ) of the Board in October 2020. A transcript of the hearing is of record. VA already has conceded the Veteran’s tinnitus (ringing in his ears) is the result of his service, so service connection for this disease already was granted during the pendency of this appeal for bilateral hearing loss. Entitlement to service connection for bilateral hearing loss The Veteran asserts that his bilateral hearing loss – like his already determined to be service-connected tinnitus, was caused by repeated exposure to hazardous noise during his service and consequent injury (i.e. acoustic trauma). The Veteran’s military occupational specialty (MOS) was welder; thus, hazardous noise exposure during his service is consistent with the circumstances of his service and, in fact, was the very basis for already granting service connection for his tinnitus. 38 U.S.C. § 1154(a). Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or a disease, and (3) a nexus, or link, between the current disability and the disease or injury in service. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Certain diseases, including sensorineural hearing loss, also may be presumed to have been incurred in service if they manifested to a compensable degree (generally meaning to at least 10-percent disabling) within a year after the Veteran’s separation from service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Here, though, the Board is granting service connection for bilateral hearing loss based on direct incurrence of this condition during the Veteran’s service, rather than on the notion that it is presumptively related to his service. As concerning initially the current status of his hearing acuity, note that hearing loss will be considered a ratable 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 these frequencies 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. Hearing loss does not constitute a ratable disability if it does not meet these threshold minimum requirements of this VA regulation. Palczewski v. Nicholson, 21 Vet. App. 174, 177 (2007). At an October 2016 VA examination, the Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: October 2016 HERTZ 500 1000 2000 3000 4000 CNC RIGHT 25 25 35 65 60 100% LEFT 65 65 65 65 65 76% The Veteran, consequently, has sufficient hearing loss in each ear, so bilaterally, confirmed as sensorineural, to be considered a ratable disability according to 38 C.F.R. § 3.385. Resolution of this appeal therefore turns, instead, on whether his military service, including especially hazardous noise exposure during his service, caused his bilateral hearing loss. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and a disease or an injury incurred in service”). The Veteran underwent audiology tests prior to, during, and in anticipation of his separation from service. Of note, the 3000 Hz range was not tested at any of these examinations, and this is reflected in the tables below. The results were as follows: January 1971 - enlistment HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 N/A 45 LEFT 0 5 0 N/A 35 August 1971 HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 N/A 5 LEFT 10 10 15 N/A 55 January 1973 - separation HERTZ 500 1000 2000 3000 4000 RIGHT N/A 10 10 N/A 10 LEFT N/A 10 10 N/A 10 Those audiology results from the Veteran’s service show that his hearing seemingly improved between the time of his entrance into service in 1971 and later separation from service in 1973. At the conclusion of the more recent October 2016 VA compensation examination, the examiner opined that it is less likely than not the Veteran’s bilateral hearing loss is the result of his military service, including hazardous noise exposure. The rationale was that he had a 4000 Hz noise notch configuration, bilaterally, when he entered military service based on his January 1971 entrance examination. Further, his hearing was within normal limits, bilaterally, at separation. The examiner speculated that the hearing test the Veteran had upon entrance into service was not a valid threshold measure and it may have been contaminated by him having temporary threshold shift from sustaining acoustic trauma within 16 hours of having the hearing test. The Board gives this opinion little probative value, though, because the examiner did not address the Veteran’s audiology test in the interim, in August 1971, which had similar levels of hearing loss in the 4000 Hz frequency as the January 1971 audiology test in anticipation of him entering the military, but would not have been subject to that same acoustic trauma mentioned within 16 hours of the testing. Also, of note, while the October 2016 examination report shows the evaluation was done by a Doctor of Audiology (i.e., audiologist), as required by VA regulations, the Veteran believes that examination was inadequate because it was actually performed by a college student other than the named examiner. VA is presumed to have properly chosen an examiner who is qualified to provide competent medical evidence, but the requirement that the Veteran raise the issue of the competency of the medical examiner is best referred to simply as a "requirement" and not a "presumption of competency." See Francway v. Wilkie, 940 F.3d 1304, 1307, n. 1 (Fed. Cir. 2019) (en banc). However, the Federal Circuit Court also clarified in Francway that, “whether an examiner is competent and whether he [or she] has rendered an adequate exam are two separate inquiries.” Francway at 1381 (quoting Mathis v. McDonald, 834 F.3d 1347, 1351 (Fed. Cir. 2016) (Hughes, J., concurring in denial of rehearing en banc), modified on other grounds by Francway v. Wilkie, No. 2018-2136, 2019 U.S. App. LEXIS 30633 (Fed. Cir. Oct. 15, 2019) (en banc). In a March 2017 letter since received, the Veteran explained that his MOS required use of loud indoor diesel generator powered welding machines. He also submitted a copy of a letter that he had sent to the Army while in service indicating the Army could cut down on noise pollution, among other benefits, by switching to an electric powered welding machine. Still further, in August 2018, the Veteran submitted a supporting private opinion from Audiologist Dr. Y.S. Dr. Y.S. noted that the Veteran had presented for an in- person audiological examination, and the record reflects that Dr. Y.S. had a full and correct history concerning the Veteran’s military noise exposure and reviewed his audiology test results from when he was in service. Dr. Y.S. concluded that it is at least as likely as not the Veteran’s bilateral hearing loss was caused by an event during his military service, and the event referenced is noise exposure during his service. While since testifying during his hearing in October 2020 before this Board, the Veteran reiterated that, during his service, his MOS of welder required him to use loud machines – including the diesel generator powered welding machine, and that he was not provided hearing protection. Further, he stated that he had first noticed bilateral hearing loss immediately following his basic training, so virtually at the outset of his service. He also again maintained that his VA examination was done by a student rather than by the Doctor of Audiology (audiologist) who signed the examination report. The Veteran is competent to report the circumstances of both his service and that VA examination. When considering the opinions that have been provided, the Board finds that the opinion supporting the Veteran’s claim of entitlement to service connection for bilateral hearing loss is certainly as probative (meaning as competent and credible), if not more probative, than the VA examiner’s opinion conversely against the claim.   In this circumstance, this reasonable doubt is resolved in the Veteran's favor and the claim granted rather than denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Pak 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.