Citation Nr: 21015257 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 15-45 951 DATE: March 17, 2021 REMANDED Service connection for a bilateral hearing loss disability is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1986 to February 1992. This case is before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO denied entitlement to service connection for a bilateral hearing loss disability. In June 2014, VA received the Veteran’s Notice of Disagreement (NOD). In October 2015, the RO issued a Statement of the Case (SOC). In December 2015, VA received the Veteran’s VA Form 9 appeal to the Board. In April 2019 the Board remanded the case for further development and adjudicative action. 1. Entitlement to service connection for a bilateral hearing loss disability. The Veteran contends that his currently diagnosed sensorineural bilateral hearing loss is related to in-service noise exposure to M16 rifle fire at a practice firing range with ill-fitting plugs in approximately November 1987 and noise and from trucks, tanks, and jets (including munitions fire) as he refueled military vehicles on the front lines during Desert Storm. The Veteran’s DD Form 214 reflects that he had a military occupational specialty (MOS) of petroleum supply specialist. He received a Southwest Asia Service Medal with a Bronze Service Star for his service. The DD Form 214 also shows that the Veteran served in the Southwest Asia Theater of Operations from October 1990 to July 1991. For purposes of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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. When audiometric test results at a Veteran's separation from service do not meet the regulatory requirements for establishing a disability at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The threshold for normal hearing is from zero to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Id. at 157. Service treatment records (STRs) from October 1986 show that an audiogram was administered at entrance into service. Furthermore, in November 1987, the Veteran reported that he was experiencing ringing and having trouble hearing out of his left ear after shooting his M16 rifle. The army physician identified “possible leaking of earplugs” as a cause. Upon examination, the Veteran demonstrated decreased hearing out of the left ear and “tinnitus [secondary] to percussion.” No audiogram was conducted. STRs dated November 2, 1987. However, there is no record of a separation examination in the claims file; and, a March 1994 VA general medical examination indicates that the Veteran’s ears were normal, and he did not report hearing loss at that time. The file is also mostly devoid of service personnel records other than identification data, a record of assignments, and the DD Form 214. To date, the RO has not made a formal finding of unavailability or notified the Veteran that these records are unavailable. Also, it is not clear whether the Veteran is in possession of any separation examination or other service medical records that are not also in the claims file. In an October 2003 statement received at the RO in February 2004, the Veteran requested help obtaining his service medical records. The Veteran further stated that he had requested a copy of his medical records from the National Personnel Records Center (NPRC), and was told in a July 2003 NPRC response that his medical records were lent to VA and that he should contact the nearest RO to obtain copies of them. A copy of the NPRC letter was attached to the Veteran’s statement. Notably, while the July 2003 letter indicates that “Additional service medical records for the veteran have been lent to VA,” that July 2003 letter also indicates that a copy of the Veteran’s requested separation documents were enclosed. The letter specifically states, “We are pleased to respond to your request for Medical Records by providing the enclosed documents.” In addition, the word “Enclosure(s)” is noted at the bottom of the correspondence. Thus, it appears that some of the Veteran’s service records were sent to the Veteran in 2003, and it is not clear whether VA already had copies of those documents prior to the Veteran’s request. Regardless, the Veteran has not identified the records he received or, to the Board’s knowledge, submitted copies of the separation documents he received from the NPRC in July 2003. The first audiometric post-service evidence of record, was from an October 2007 VA outpatient audiology consultation provided at the audiology clinic. Although it is dated approximately 15 years after separation, the consultation notes the Veteran’s competent reports of gradually worsening hearing loss for the past 21 years (i.e with onset during service). Audiometric findings from that examination, however, did not reveal a hearing loss disability for VA purposes. Similarly, audiometric findings from a May 2011 VA outpatient audiology consultation did not show a hearing loss for VA disability purposes. That is, none of the auditory thresholds in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz was 40 decibels or greater; and there were not at least three of the auditory thresholds for the frequencies 500, 1000, 2000, 3000, or 4000 Hertz that were 26 decibels or greater. Finally, speech recognition scores using the Maryland CNC Test were not less than 94 percent. However, the findings from May 2011 do indicate a positive threshold shift from the findings in 2007 such that some degree of hearing loss is shown in May 2011 (thresholds above 20) which was not present in 2007. Again, though, the degree of hearing loss shown in 2011 does not rise to the level that is considered a disability for VA purposes under 38 C.F.R. § 3.385. A December 2019 VA audiologist concluded that the Veteran’s diagnosed sensorineural hearing loss was less likely than not related to in-service noise exposure because there was no significant threshold shift between the November 1987 entrance examination and the October 2007 VA audiogram. However, she further noted that, without a separation audiogram, it would be speculative to estimate a threshold shift during service. Further, the December 2019 examiner gave no indication of why the lack of a threshold shift between the October 1986 and October 2007 audiograms would preclude any casual relation between the Veteran’s current bilateral hearing loss and service. See Hensley v. Brown, 5 Vet. App. 155 (1993). In light of the above, remand is warranted for association of any outstanding STRs and personnel records with the claims file. After association of any missing records with the claims file, the RO should obtain an addendum opinion regarding the nature and etiology of the Veteran’s bilateral hearing loss disability addressing whether the Veteran’s bilateral hearing loss disability had onset during or is otherwise related to his in-service noise exposure or other disease or injury in service. The matters are REMANDED for the following action: 1. Request from the Veteran copies of any service medical records including, but limited to, discharge records that were sent to him from the NPRC in July 2003, as noted in the July 2003 NPRC correspondence to the Veteran. 2. Attempt to obtain any outstanding service treatment records and service personnel records from all appropriate sources. If unable to obtain additional records, the RO should prepare a formal finding of unavailability and notify the Veteran of the determination. 3. Thereafter, obtain a VA addendum opinion regarding the nature and likely etiology of the Veteran’s bilateral hearing loss disability. The claims file and a copy of this Remand must be made available to the reviewing examiner, and the examiner shall indicate in the addendum report that the claims file was reviewed. After a review of the claims file, the examiner is asked to opine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s currently diagnosed bilateral hearing loss either had onset during service with continuing symptomatology to the present or is otherwise related to in-service noise exposure. A rationale for all opinions must be provided. Specifically, the examiner must consider the November 1987 STR note describing left ear hearing loss and tinnitus after shooting an M16 rifle and the Veteran’s exposure to noise, including munitions fire, from trucks, tanks, and jets during his Desert Storm service. Moreover, the examiner should address the Veteran’s lay statements regarding continuity of hearing loss symptoms during, and since, service. Further, it is noted that lack of continuity of the bilateral hearing loss or a threshold shift between entrance and separation from service does not automatically preclude service connection for bilateral hearing loss, as service connection may be established for post-service onset when all of the evidence shows that the disability is due to an in-service injury or disease, i.e. noise exposure in this case. Therefore, if no continuity of symptoms and/or no threshold shift is shown, the examiner should assess whether any causal relationship exists between the Veteran’s current bilateral hearing loss and events during service. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Small, Attorney Advisor 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.