Citation Nr: 21014488 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 12-17 368 DATE: March 12, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT It is at least as likely as not that hearing impairment began in service and gradually worsened over time, and there is a current bilateral hearing loss disability for VA purposes. CONCLUSION OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309. REMANDED Entitlement to service connection asbestosis is remanded. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty in the U.S. Army from April 1970 to December 1971. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a February 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2015, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ) and a transcript of the proceeding is of record. All requirements for hearing officers have been met. 38 C.F.R. § 3.103 (c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). The Board remanded the matter in November 2015, October 2017 and July 2019. The record reflects there has been compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection for certain chronic diseases, including sensorineural hearing loss, may be established on a presumptive basis by showing that the condition 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, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 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). 1. Entitlement to service connection for bilateral hearing loss is granted. The Veteran alleges that his current bilateral hearing loss is due to in-service noise exposure. At a November 2002 VA appointment, the Veteran reported a history of hearing loss since approximately 1990. At the August 2015 hearing testimony, he described a gradual onset of hearing loss that began in the 1970s. First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). For VA purposes, impaired hearing will be considered 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. At a November 2002 VA audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 15 50 75 LEFT 10 10 15 60 70 The auditory thresholds in the right and left ear were above 40 decibels at 3000 and 4000 Hz and those findings meet the criteria for a hearing loss disability for VA purposes. Second, the Board finds that there was an in-service injury. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). In March 2011, the Veteran wrote that he had no hearing protection in service and was routinely exposed to loud noises. He reported the sounds were loud enough to knock him off his feet. In-service exposure to loud military noise from gunfire, artillery simulators, and aircraft with intermittent utilization of hearing protection has been conceded and service connection is already in effect for tinnitus due to that exposure. See October 2017 Board decision. Also, the Veteran’s separation examination documents that the right ear auditory threshold at 4000 Hz was 30. Normal hearing is from 0 to 20 decibels and a higher threshold level indicates some degree of hearing loss despite not meeting the criteria for a hearing loss disability. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Thus, there was also some degree of hearing loss at separation. The Veteran’s hearing was otherwise normal during service, however at no point was the Veteran’s auditory threshold at 3000 Hz documented. At the November 2002 VA examination, the Veteran reported decreased hearing since 1999, and had difficulty hearing transmissions on the radio at work. He did report exposure to excessive noise in service, and to construction equipment in his civilian career although he did report using hearing protection. The Veteran reported his last hearing evaluation was upon separation from service. A September 2010 private audiology record notes the Veteran did not have significant noise exposure following separation from service despite being a heavy equipment operator. The provider, Dr. JA, documented the Veteran’s hearing problems began in service and worsened over time. The impression was noise induced sensorineural hearing loss. A May 2016 VA examination was conducted. The examiner opined that hearing loss was not due to service, noting that there were no significant threshold shifts during service. In an April 2019 addendum, the VA audiologist opined that the diagnosed bilateral hearing loss was not due to the Veteran’s period of service. The audiologist explained that there were only 10 decibel shifts in auditory thresholds from entrance to separation, which did not reflect a significant threshold shift during the Veteran’s period of service. The Board previously found these opinions inadequate and remanded the matter for an addendum. VA obtained an addendum in opinion in January 2020. The examiner again opined that the diagnosed hearing loss was not related to service because the record did not show a permanent threshold shift of at least 15 decibels during the Veteran’s period of service. The examiner explained the hearing industry standards required a minimum 15 decibel shift to qualify as a recordable shift that is greater than the normal progression of aging. The examiner noted that although there was evidence of right ear hearing impairment at separation, there was no follow up testing to determine whether the shift was an anomaly or permanent. The examiner instead determined the current hearing loss was more than likely due to post-service noise exposure and age. That examiner reported that post-service employment hearing screenings did not show hearing loss per the Veteran’s report. Here, the evidence for and against the claim is in relative equipoise and reasonable doubt is resolved in the Veteran’s favor. The STRs do not show a hearing loss disability for VA purposes, but do document threshold shifts in service and right hearing impairment at separation. The Veteran has testified that his hearing loss had a gradual onset since the 1970s and since separation from service. See August 2015 hearing testimony; see September 2010 private audiology record. The November 2002 VA examination notes the onset of hearing loss as 1999, however that is the only place in the record documenting that date of onset. Although the 2020 VA examiner noted that post-service hearing tests through the Veteran’s job were normal, that is not reflected in the available evidence. The Veteran only identified Allied Waste from 2008 to 2010 as the business who possessed the hearing loss records. See September 2010 VA 21-4142. The September 2010 private audiology record appears to be the only outside hearing test. That test did show a hearing loss disability and noted it had been present since the Veteran’s period of service in contradiction to the January 2020 VA examiner’s conclusion. In sum, it is at least as likely as not that a hearing impairment began during the Veteran’s period of service due to conceded in-service noise exposure, and gradually worsened over time. The competent evidence of chronic hearing loss symptoms since the in-service event supports a nexus between the currently diagnosed bilateral hearing loss disability and the Veteran’s period of service. Thus, the claim is granted. REASONS FOR REMAND 1. Entitlement to service connection asbestosis is remanded. Unfortunately, remand is again required for an addendum opinion on the etiology of the claimed asbestosis. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The central issue in determining probative value of a medical opinion is whether the examiner was informed of the relevant facts. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). Most recently, VA obtained a medical examination and opinion in February 2020. That examiner concluded there was no diagnosis because there were no findings, signs, or symptoms to support a diagnosis. The examiner failed to address relevant evidence in providing that assessment. Of record is a private medical report dated April 2004 from Dr. RA documenting a diagnosis of asbestosis and including an opinion that the asbestosis was due to inhalation of asbestos fibers in the workplace. Dr. RA interpreted an April 2004 x-ray report as showing bibasilar interstitial changes consistent with asbestosis despite the Veteran’s normal lung function. Other private treatment records dated October 2015 list asbestosis among the Veteran’s current problems despite the lack of any accompanying symptoms. The Veteran has testified to symptoms of intermittent shortness of breath and recurrent pneumonia. On remand, VA should obtain another addendum opinion that fully reconciles the evidence indicating a current diagnosis of asbestosis despite normal lung function and lack of persistent symptoms. On remand, VA should again attempt to obtain a missing and relevant private treatment record. The first page of Dr. RA’s report is missing in the claims file but was presented directly by the Veteran to a VA examiner in April 2019. That VA examiner quoted the report as noting that the Veteran worked from 1972 to 1997 as a coal miner and worked directly with asbestos insulation, pipe covering, cloth, gloves, and valve packing. On remand, VA should again attempt to obtain the missing first page of the April 2004 report. The matters are REMANDED for the following action: 1. Inform the Veteran that the first page of Dr. RA’s April 2004 report is not in the claims file and request that he submit a complete copy of the report. Also afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 2. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of the claimed asbestosis from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. (a.) The examiner must clarify whether asbestosis has been present during the appeal period. (b.) The examiner must address the following: 1) Dr. RA’s interpretation of an April 2004 x-ray report as showing bibasilar interstitial changes consistent with asbestosis despite the Veteran’s normal lung function; 2) private treatment records dated October 2015 listing asbestosis among the Veteran’s current problems despite the lack of any accompanying symptoms; and 3) the Veteran’s testimony of symptoms of intermittent shortness of breath and recurrent pneumonia. (c.) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that asbestosis had onset in, or is otherwise related to, active service. (d.) The examiner must address the following: 1) the April 2004 private report; and 2) the Veteran’s reports of asbestos exposure during service, to include as due to asbestos gloves and being stationed in Germany at a site where the barracks were being remodeled and that the plaster contained asbestos. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Smith, 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.