Citation Nr: 21014966 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 15-02 509 DATE: March 16, 2021 ORDER Service connection for bilateral hearing loss is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran’s currently diagnosed hearing loss disability is related to in-service acoustic trauma. CONCLUSION OF LAW Resolving all doubt in favor of the Veteran, the criteria to establish service connection for bilateral hearing loss disability are met. 38 U.S.C. § 1110, 5107 (2012); 38 C.F.R. § 3.303, 3.304, 3.307, 3.309, 3.385 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Air Force from November 1970 to October 1971, and in the United States Navy from November 1975 to May 1977. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part denied service connection for bilateral hearing loss. The Veteran appealed the Board’s February 2019 decision denying service connection for bilateral hearing loss to the Court of Appeals for Veteran’s Claims (CAVC). In January 2020 the Secretary of the VA and the Veteran (the Parties) filed a Joint Motion for Remand which was granted that same month. The Parties agreed that the Board’s statement of reasons or bases was inadequate to support its determination that service connection was not warranted for bilateral hearing loss. Specifically the Parties found that the Board failed to analyze, as required by caselaw, why the Veteran would reasonably have been expected to report his hearing loss symptoms to medical providers prior to November 2011 and whether the hearing loss symptoms the Veteran experienced during service were of such severity that it would have been reasonable to expect that he would have sought treatment or complained of hearing loss during service. Fountain v. McDonald, 27 Vet. App. 258, 272 (2015); and that the Board failed to establish a proper foundation for drawing inferences against the Veteran from an absence of documentation; failed to discuss the January 1971 audiogram, and failed to provide an adequate discussion of whether a November 2014 examination report adequately addressed Appellant’s diagnosed left ear hearing loss. In July 2020 the Board remanded the claim to the RO for further development. The Claim is now returned to the Board for appellate consideration. The Board observes substantial compliance with its remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection In order to establish service connection on a direct basis, the record must contain competent evidence of: (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. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Some chronic diseases, to include sensorineural hearing loss, may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C.§§ 1101 (3), 1112(a); 38 C.F.R. §§ 3.307 (a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). All have a presumptive period of one year following separation from service. A Veteran is competent to describe symptoms that he experienced in service or at any time after service when he or she perceives or experiences symptoms directly through the senses. 38 C.F.R. § 3.159; Layno v. Brown, 6 Vet. App. 465, at 469-71 (1994). In addition, lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence is insufficient to establish a medical diagnosis or nexus. However, lay evidence may be sufficient to identify a medical diagnosis in those cases where the lay person is competent and identifying a medical diagnosis does not otherwise require specialized medical training and expertise to do so; i.e., the Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006). Although self-interest may affect the credibility of testimony, it does not affect competency to testify. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). Competency of evidence differs from credibility and weight of evidence; competency is a legal determination as to whether testimony may be heard or considered by the trier of fact; credibility and weight of evidence are factual determinations to be made as to the probative value of the evidence after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. at 498 (Fed Cir. 1996). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). “It is in recognition of our debt to our veterans that society has determined that, by tradition and by statute, the benefit of the doubt belongs to the veteran.” Gilbert, 1 Vet. App. At 54. Standards Applied to Claims for Hearing Loss Hearing loss for the purposes of VA disability compensation is considered a disability when the auditory threshold in any of the 500, 1000, 2000, 3000, and 4000 hertz frequencies is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 hertz are 26 decibels or greater; or when the speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Court has held that a veteran may establish the required nexus between current hearing loss disability and his term of military service if he can show by competent evidence that his hearing loss disability resulted from the in-service acoustic trauma even where the hearing loss disability does not arise in service. Godfrey v. Derwinski, 2 Vet. App. 352 (1992). Entitlement to service connection for bilateral hearing loss The Veteran contends that he has bilateral hearing loss that had its onset in, was aggravated by or is otherwise related to service. After review and consideration of the probative lay and medical evidence, the Board agrees. The Board finds that the Veteran has a bilateral hearing impairment that meets the criteria for hearing loss disability for VA compensation purposes. During a June 2013 VA audiology examination, the Veteran had three right ear pure tone hearing thresholds above 26 in both ears. See 38 C.F.R. § 3.385. As such, the Veteran has a current hearing loss disability for VA compensation purposes. The Board next finds that the Veteran was exposed to acoustic trauma in service. The Veteran has already been awarded service connection for tinnitus based on in-service noise exposure. The Veteran's DD Form 214 indicates Military Occupational Specialties (MOS) of aircraft and engine mechanic and a machinist mate. Both are listed in the Department of Defense report as associated with a high probability of hazardous noise exposure. The Veteran asserted that he was exposed to extremely high levels of noise as an aircraft mechanic in the Air Force and as a machinist mate and fireman performing his duties in the engine room aboard a U.S. Navy destroyer and that he has had problems with his hearing since service. See July 2013 Statement in Support of Claim. The Veteran is competent to report such, and the Board finds no reason to doubt his credibility in that regard. Thus, the Board finds that the Veteran was exposed to loud noise in service. The Veteran’s February 1970 pre-induction audiometric testing exhibited pure tone thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 5 5 15 LEFT 15 5 5 15 15 At the Veteran’s second pre-induction examination in September 1970, his pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 20 15 LEFT 10 10 5 10 15 In January 1971 inservice the Veteran’s audiometric testing results were recorded on a Hearing Conservation Data form as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 20 15 LEFT 10 10 5 10 15 Additional Information captured on the Hearing Conservation form included that the Veteran’s primary noise exposure was from aircraft in his primary work areas of the flight line and the hangar shop. Ear protection was documented as “not worn” by the audiologist. At the discharge medical examination in September 1971, the Veteran reported no history of hearing loss, no hearing abnormalities were noted, and his pure tone thresholds, in decibels, (ISO) were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 10 20 LEFT 10 15 0 15 25 At the time of his November 1975 re-enlistment with the Navy the Veteran denied hearing loss and his audiometric evaluation (ANSI 69) were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 10 15 10 LEFT 15 15 0 10 20 In April 1977 prior to discharge from the Navy his pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 15 25 LEFT 10 10 5 15 30 The Veteran was afforded a VA examination in July 2013, in which the examiner concluded that it was less likely than not that the Veteran’s bilateral hearing loss was related to service. As noted above, audiometry results confirmed a hearing loss for VA purposes as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 25 35 45 LEFT 20 20 25 35 45 The examiner supported her conclusion with the Veteran’s normal hearing on all his service audiograms except for a 30-decibel loss at 4000 hertz in the left ear in 1977, which was not considered disabling under VA regulations. She also noted that the Veteran denied hearing loss and tinnitus on all questionnaires in the military and his statement that he became aware of his hearing loss a few years after service. In November 2014, the Veteran underwent a second VA hearing examination. The audiometric findings were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 30 40 55 LEFT 25 25 30 40 55 Speech discrimination scores were 96 percent for both ears. The November 2014 examiner confirmed bilateral sensorineural hearing loss and noted that the Veteran showed considerable variability in his thresholds indicating that the tests were somewhat inconsistent. The examiner compared his discharge from the Air Force in 1971 with his Navy discharge in 1977 finding no significant shift in the right ear and a mild shift in the left ear. With that he concluded that it was less likely than not the Veteran’s bilateral hearing loss was related to service. The Veteran underwent a third VA hearing examination in January 2021. The examiner noted at the outset that the Veteran’s hazardous noise exposure was conceded and his subjective report of left ear hearing loss while in service was taken into consideration. The examiner audiologist reviewed all audiometric test results and determined that there had not been any significant threshold shifts in service beyond normal variability emphasizing that there is some inherent degree of variability in testing that does not constitute an injury. The examiner concluded that the Veteran’s hearing loss was less likely than not due to service stating that in the absence of objectively verifiable noise injury the association between claimed hearing loss and noise exposure cannot be assumed. The Board notes that the June 2013, November 2014 and January 2021 examiners entirely focused support for their conclusions on the lack of complaints of hearing loss in service and the lack of objective evidence of a shift in hearing thresholds in service. However, the proper inquiry here is whether the Veteran’s current hearing loss is related to his in-service noise exposure. See Hensley v. Brown, 5 Vet. App. 155, 164 (1993). The last examiner was specifically directed to address the Veteran’s contentions describing in-service acoustic trauma, his in-service symptoms of hearing loss, and his contended symptoms of hearing loss since service. See Godfrey, 2 Vet. App. 354. Moreover, the Board notes, in the aggregate, the examiners did not consider the Veteran’s statements regarding the circumstances of his service, including whether hearing protection was used in these high hazardous noise exposure environments, and failed to recognize and consider threshold shifts as the Veteran separated from the Air Force in 1971 and from the Navy in 1977. The Board further notes that the thresholds for normal hearing are 0 to 20 decibels, and higher threshold levels indicate a degree of hearing loss. Hensley, 5 Vet. App. at 157 (citing Schroeder et al. eds., Current Medical Diagnosis & Treatment, 1988, pages 110-111). As illustrated above, the Veteran's 1971 Air Force discharge examination revealed hearing acuity of 25 decibels at 4000 Hertz in the left ear indicating a degree of hearing loss. Moreover, contrary to the factual findings of the examiners, this evidence of hearing loss was consistent with April 1977 audiometry results which then showed progression in the thresholds at 4000 Hz to 25 decibels in the right ear and to 30 decibels in the left ear. Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider considers such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). As such, the probative value of the examiner’s conclusions is additionally limited by these factual omissions. In sum, the Board finds that the evidence is at least in equipoise as to whether the Veteran's bilateral hearing loss is a result of in-service noise exposure. Resolving reasonable doubt in his favor, and as the Veteran is already service connected for tinnitus based on military noise exposure, the Board finds that the Veteran has hearing loss disability as the result of service. Thus, service connection for bilateral hearing loss is granted. See 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. Romina A. Casadei Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Adams Hill, 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.