Citation Nr: 21015480 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 18-46 162A DATE: March 17, 2021 REMANDED Entitlement to service connection for hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1966 to January 1968. This case is before the Board of Veterans’ Appeals (Board) on appeal from a July 2018 rating decision. In February 2020, the Veteran testified at a videoconference hearing at the RO before the undersigned Veterans Law Judge (sitting in Washington, D.C.). A transcript of that proceeding is of record. In April 2020 the Board remanded the appeal for further development and adjudicative action. 1. Entitlement to service connection for hearing loss 2. Entitlement to service connection for tinnitus The Veteran contends that his hearing loss and tinnitus are related to acoustic trauma during service. 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. Service treatment records (STRs) indicate that upon induction examination, the Veteran reported problems with ear, nose, or throat trouble and running ears, but he did not indicate a problem with hearing loss. A January 28, 1966 examination shows that audiometer testing revealed normal to mild hearing loss. Separation examination shows that audiometer testing revealed hearing within normal limits. The March 7, 1966 record indicates that the Veteran was having trouble with his right ear, noting scarring of the right tympanic membrane. In a May 2018 private medical record, the examiner stated that the Veteran reported intermittent buzzing in his ears, first noticed it in the last year. The examiner noted that the Veteran did not have a history of ear surgeries, hereditary hearing loss, or a history of post service-noise exposure. It indicates that he had noise exposure during service from tanks, diesel engine tanks, jets flying overhead, and artillery, and that hearing protection was not provided. The June 2018 hearing loss and tinnitus disability benefits questionnaire (DBQ) indicates diagnoses of sensorineural hearing loss in the right and left ear as well as tinnitus. The examiner opined that the Veteran’s right and left ear hearing loss is not at least as likely as not caused by or a result of an event in military service. The rationale was that although the Veteran has hearing loss upon examination and was exposed to excessive noise during his military service as a tanker, he maintained normal hearing thresholds upon entrance and separation examinations in the claims file. The examiner found, therefore, that the Veteran’s hearing loss is less likely than not due to military noise exposure. Regarding tinnitus, the examiner stated that the Veteran first noticed it about two years prior and opined that it is less likely than not caused by or a result of military noise exposure. The rationale was that although the Veteran was exposed to loud noises during his military service, the onset of the Veteran’s tinnitus does not coincide with his military experience. The examiner stated that, therefore, the Veteran’s tinnitus is less likely than not due to military noise exposure and that tinnitus is a known symptom of diagnosed hearing loss. During the February 2020 Board hearing, the Veteran’s representative stated that the Veteran’s hearing was acceptable upon entrance into service. The Veteran credibly testified that during service he had extensive training on equipment, including running, driving, shooting, and loading tanks. He stated that he never had earplugs and that when he separated from service, he was not administered an audiology examination. VA treatment records reveal treatment for bilateral hearing loss and tinnitus. The Veteran reported that ever since service he has had a difficult time with hearing, has trouble with most conversations, televisions, and phone calls. The Veteran has submitted multiple statements and testified credibly, at the February 2020 Board hearing, that he had noise exposure in service with continued problems today. In the January 2021 VA examination report, the VA examiner stated that the entrance audiogram on January 28, 1966 reported normal hearing thresholds 20-25 decibels in both ears, 500-4000 Hertz and the separation audiogram on December 15, 1967 reported normal hearing thresholds 0 to -10 decibels, in both ears, 500-4000 Hz with no threshold shifts noted for either ear. She noted that the May 2018 private audiogram showed bilateral hearing loss, left greater than right, as well as complaints of intermittent tinnitus, noted to have started in the last year from the date of the examination, most noticeable in the 2-3 months prior to the examination. The examiner opined that it is less likely than not that the Veteran’s claimed conditions are related to service. The examiner’s rationale was that the entrance audiogram dated January 28, 1966 and the separation audiogram on December 15, 1967 both reported normal hearing thresholds 500-4000 Hertz in both ears, with no threshold shifts noted for either ear. She stated that although he was exposed to loud tanks and tank firing, he maintained normal hearing thresholds up until the separation audiogram and that there were no complaints of hearing loss or tinnitus in the claims file until 50 years after service, in 2018. The VA opinions of record are found to be of limited probative value as the conclusions reached appear to be, at least partially, based on the fact that the Veteran had not complained of or been diagnosed with hearing loss or tinnitus during service or for many years after separation from service. However, the passage of time between in-service noise exposure and the development of hearing loss and/or tinnitus may not be the sole basis upon which to deny a claim for service connection. See Hensley v. Brown, 5 Vet. App. 155 (1993) (service connection can still be established, even if a hearing loss was not present in service or at separation from service, if the medical evidence shows the loss is actually due to incidents of service). Moreover, the examiner in January 2021 found that the Veteran had normal hearing thresholds of 20-25 decibels in both ears between 500-4000 Hertz; however, according to Hensley, 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. Thus, while the January 1966 findings do not show a hearing loss disability for VA purposes under 38 C.F.R. § 3.385, it appears that some degree of hearing loss was noted at entry. Additionally, on his Report of Medical History in January 1966, the Veteran reported having trouble with his ears, and the examiner noted that the Veteran had ear infections on occasion. He was found fit for duty, but the physical profile on the Report of Examination at induction indicated a “2” for hearing. Also, an undated audiogram located in the STRs also appears to show that the Veteran’s hearing was worse than what was recorded on the January 1966 induction examination. Finally, it does not appear that the examiner considered the above STRs, or, that the hearing standards used at the time of the Veteran’s in-service hearing evaluations. Historically, when interpreting audiometric data from STRs, it is important to note that Service Departments changed from using American Standards Association (ASA) standards, to using International Standards Organization American National Standards Institute (ISO-ANSI) standards when providing audiograms beginning at some point between approximately January 1, 1967 and December 31, 1970, however, the conversion date was not consistent between all branches of the Armed Forces. Accordingly, if the standard used is not clearly indicated on the Service Department audiogram(s), it is presumed that prior to January 1, 1967 the ASA standard was used. For in-service audiograms conducted between January 1, 1967 and December 31, 1970, where the standard used is unclear, the data under both ASA and ISO-ANSI standards will be considered. For in-service audiograms conducted after December 31, 1970, it is presumed that the ISO-ANSI standard was used. As it relates to VA examinations and VA records, audiological reports were routinely converted from ISO-ANSI results to ASA units until the end of 1975 because the regulatory standard for evaluating hearing loss was not changed to require ISO-ANSI units until September 9, 1975. In this case, the entrance audiogram was conducted on January 28, 1966, well before January 1, 1967, and the separation audiogram was conducted on December 15, 1967 but the regulatory standard used is unclear. Accordingly, it is presumed that they were conducted using ASA units, the recorded metrics require conversion to ISO in order to more accurately determine the extent of the Veteran’s hearing acuity at entry and discharge. Converting from ASA standards to ISO-ANSI requires the following amounts be added to the recorded ASA audiological results: 15 dB at 500 Hz, 10 dB at 1000 Hz, 10 dB at 2000 Hz, 10 dB at 3000 Hz, and 5 dB at 4000 Hz. Additionally, as noted above, STRs indicate complaints of trouble with the Veteran’s right ear, noting scaring of the right tympanic membrane. However, the medical opinions of record do not discuss whether or not the scarring of the right tympanic membrane may have an effect on the Veteran’s current hearing related disabilities. Based on the above, the Board finds that the January 2021 VA opinion is inadequate, and the matter must be remanded for substantial compliance with the previous remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, a remand is warranted to obtain a new examination and opinion to determine whether the Veteran’s claimed disabilities are related to service. The matters are REMANDED for the following action: 1. Schedule for Veteran for a VA audiology examination to determine the nature and likely etiology of the Veteran’s bilateral hearing loss and tinnitus. The examiner must review the claims file in conjunction with the examination, to include February 2020 Board hearing transcript, including the Veteran’s credible testimony regarding military noise exposure, continued hearing related problems since service, and no post-service noise exposure. A copy of this remand should also be provided for review. (a.) Considering the Veteran’s reports of in-service acoustic trauma, the examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s right or left ear hearing loss is related to active service and to any acoustic trauma sustained therein, to include the scarring of the right tympanic membrane and exposure to noise while serving as a tanker during service. (b.) The examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s tinnitus is related to active service and to any acoustic trauma sustained therein, to include the scarring of the right tympanic membrane and exposure to noise while serving as a tanker during service. The examiner is reminded that the Veteran’s in-service entrance audiogram was conducted using the American Standards Association units, which was the standard of measurement for pure tone thresholds used by the service department in audiologic examinations at that time, and that it is unclear which standard was used for the separation audiogram. In July 1966, VA adopted the International Standard Organization (ISO) standard, which is the standard applied in 38 C.F.R. § 3.385. VA started using ISO units in July 1967. The service departments began using ISO units for measuring pure tone thresholds at some point after October 31, 1967, but it was not consistent among each service department. Therefore, to determine the level of hearing loss present during separation from service, and to compare the threshold hearing levels to later examinations, the ASA units must be converted to ISO units, as explained above. The examiner must support any opinion rendered with a detailed rationale, to include the significance, if any, of the findings on the January 28, 1966 induction audiogram in light of Hensley (thresholds above 20 decibels indicate some degree of hearing loss), and the “2” listed in the Veteran’s profile at induction under “H” for hearing, as well as the undated printout of audiometric findings during service that appears to show hearing loss. If the examiner cannot provide the above opinion, the examiner is advised that he/she must explain why the requested opinion cannot be provided. The term “at least as likely as not” does not mean within the realm of possibility, but rather that the evidence both for and against a conclusion is so evenly divided that it is as sound to find in favor of a certain conclusion as it is to find against it. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Labi, 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.