Citation Nr: 21015790 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 18-32 595 ATE: March 18, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted in part, for the left ear. FINDING OF FACT The competent, credible, and probative lay and medical evidence is in relative equipoise as to whether the Veteran's left ear hearing loss was aggravated beyond a natural progression by active service. The right ear does not have a hearing loss diagnosis. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, left ear hearing loss was aggravated by active service. The criteria for right ear hearing loss have not been met. 38 U.S.C. § 1101, 1110, 1113, 1131, 1137, 5103, 5103A, 5.107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty in the United States Air Force from May 2001 to May 2005. This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board is aware that the Veteran has requested a hearing. In light of delays in hearings scheduling caused by COVID-19, the Board ordered a review of some of the oldest docket legacy cases in our hearing queue that may be fully granted with evidence of record. Based on the grant of the appeal, the Veteran’s request for a hearing is no longer necessary and will be cancelled. Service Connection The Veteran contends that his bilateral hearing loss was incurred during his active service. The Board has reviewed the record of evidence comprehensively. Although the Board has an obligation to provide reasons and bases to support a decision, there is no requirement to discuss, in detail, all the evidence submitted by or on behalf of a Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and the most relevant evidence about what this evidence shows, or fails to show, about the issue on appeal. The Veteran must not assume that the Board has overlooked pieces of evidence that are not discussed explicitly. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 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)). Under 38 U.S.C. § 1154(b), the evidentiary burden for combat veterans with respect to evidence of in-service incurrence or aggravation of an injury or disease is reduced. See Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir.1996). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including hearing loss, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112 (2012); 38 C.F.R. §§ 3.307, 3.309. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed in 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a) (2017); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Hearing loss for the purposes of VA disability compensation is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz 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. Bilateral Hearing Loss The Veteran contends that exposure to noise while working as a nuclear weapons specialist aggravated his pre-existing hearing loss. Service personnel records confirm the Veteran’s Army occupation asa nuclear weapons specialist. Therefore, noise exposure is conceded. Service treatment records (STRs) indicated that the Veteran did not report symptoms of hearing loss upon enlistment. In a May 2000 report of medical enlistment examination, the clinical evaluation revealed normal ears and drums. The Veteran also denied ever wearing a hearing aid or having hearing loss. See March 2018 DPRIS Response, p.59; 61. However, the examiner revealed that there was hearing loss at enlistment during the audio examination at enlistment; the findings are below: HERTZ 500 1000 2000 3000 4000 Average RIGHT 10 5 0 5 15 LEFT 25 30 35 40 35 In a February 2002 STR, the Veteran was seen for a left ear abscess, which was red and swollen. See May 2017 STR-Medical, p.85. In a September 2002 STR, a clinician noted the Veteran had asymmetric hearing loss. The clinician noted the Veteran used foam hearing protection and had minimal exposure to hazardous noise. The Veteran had an ear infection. See May 2017 STR-Medical, p.64;67. In an October 2002 VA audiology note, the Veteran was referred for a hearing evaluation. The Veteran reported a history of decreased hearing and ear infections in his left ear since childhood. The right ear hearing was within normal limits across test frequencies and there was mild to moderate mixed hearing loss across test frequencies for the left ear. See March 2018 Capri, p.1. In a May 2003 STR, the Veteran complained of right ear pain. See STR-Medical, p.59. In August 2005 the Veteran was afforded a VA hearing loss and tinnitus examination. The Veteran reported military, occupational and recreational noise exposure. When the Veteran was in the military he built and loaded both conventional and nuclear bombs. The Veteran worked in a noisy environment while in-service and wore hearing protection. The Veteran also reported that he worked in an automotive tire shop, that was noisy. The Veteran indicated he wore hearing protection at the shop. The Veteran also reported that he hunted and did automotive body work recreationally and wore hearing protection. The examiner reviewed the claims file and considered the Veteran’s lay accounts; and obtained an audiogram and speech recognition test. Audiometric testing revealed pure tone thresholds, in decibels as follows: HERTZ 500 1000 2000 3000 4000 Average RIGHT 10 5 0 5 10 5 LEFT 20 30 30 40 45 36.25 Speech recognition ability was 98 percent in the right ear and 94 percent in the left ear. The audiologist indicated that type A tympanograms were obtained bilaterally, which was consistent with normal functioning middle ear. The audiologist found that there was normal hearing in the right ear across all frequencies and the left ear had flat mild to moderate mixed hearing loss. The examiner concluded that it was at least as likely as not the Veteran’s right ear hearing loss was related to military noise exposure. The examiner indicated that the Veteran had a long history of hearing evaluations that had the same characteristics of normal hearing in the right ear and flat mild to moderate hearing loss in the left ear. The examiner also indicated that there was mixed loss of hearing which maybe medically treatable. The examiner stated that there was little exposure to noise without hearing protection while the Veteran was in-service, and the configuration of the loss was not consistent with hearing loss associated with exposure to noise. In a September 2005 C&P examination note, the examiner indicated that the Veteran received audiograms in May 2000, December 2001 and September 2002. The examiner noted that the audiograms consistently showed left ear hearing loss without significant change in threshold at each frequency. Also, it was noted that a June 2004 audiogram was placed in the Veteran’s STR’s, but the examination belonged to another Veteran. The Veteran reported that his hearing fluctuated throughout service and increased difficulty in presence of background noise. The Veteran reported that he had earaches beginning at the age of 6 or 7 until the 6th grade. The Veteran had occasional mild earaches while in-service and was treated for left ear abcess while in-service. The Veteran reported that he had no significant noise exposure prior to service Upon evaluation, the examiner stated that the August 2005 audiogram showed no significant change with the left ear hearing loss as compared to the May 2000 entrance examination. The examiner gave a diagnosis of left ear mixed hearing loss, consistent with ear infections prior to service. The examiner noted that there was not a worsening degree of hearing loss and did not appear to have been permanently aggravated by military service. In December 2017, the Veteran submitted a statement. The Veteran stated that he worked as a nuclear weapons specialist while in-service. The Veteran indicated that due t ground burst simulation and constant noise, his hearing was damaged. The Veteran noted that when he separated from service, he wanted to reenlist but was denied the opportunity due to his hearing loss. See December 2017 VA 21-4138 Statement In Support of Claim. In March 2018, the Veteran was afforded another hearing loss and tinnitus VA examination. The examiner reviewed the claims file and considered the Veteran’s lay accounts; and obtained an audiogram and speech recognition test. Audiometric testing revealed pure tone thresholds, in decibels as follows: HERTZ 500 1000 2000 3000 4000 Average RIGHT 20 10 10 15 25 15 LEFT 45 60 60 55 55 57.5 Speech recognition ability was 98 percent in the right ear and 94 percent in the left ear. The audiologist indicated the Veteran’s right ear had normal hearing and provided a diagnosis of mixed hearing loss in the left ear. The examiner concluded that it was not at least as likely as not the Veteran’s left ear hearing loss was related to service. The examiner indicated that the Veteran’s hearing loss existed prior to service with the Veteran having mild to moderate hearing loss during the entrance examination. In addition, the examiner found that the Veteran’s pre-existing hearing loss was not aggravated beyond a natural progression in service; because entrance to separation found no significant changes in thresholds and the Veteran’s hearing loss was mixed in nature, which was medically treatable and not attributed to military noise. The Veteran reported that his hearing loss impacted his ordinary conditions of daily life; because he had difficulty hearing in groups, at a distance, in one on one conversations, trouble hearing background noise and when he could hear had trouble understanding. In June 2018, the Veteran submitted a form 9. The Veteran pointed out that his March 2018 rating decision indicated that his STR’s showed that he incurred a hearing loss in his left ear; but his May 2018 statement of the case (SOC) stated that the VA examiner indicated that there were no significant changes in thresholds between entrance and separation. In addition, the Veteran noted that prior to service he had hearing loss but was allowed to enlist without any problems. The Veteran stated that he was exposed to a lot of noise in-service and was required to take hearing tests frequently. He further indicated that a few years into his service there were concerns regarding the severity of his hearing loss and there were discussions regarding him being medically discharged. See June 2018 Form 9, p.1-2. While the Board acknowledges the March 2018 VA audiologist's negative nexus opinion, there are some shortcomings. Even though this VA audiologist reported the Veteran's subjective accounts related to hearing loss and symptomatology, he did not adequately factor this subjective evidence into his opinion regarding left ear hearing loss. The Veteran met the criteria for hearing loss in the left ear for VA purposes; because the auditory thresholds in each of the frequencies 500, 1000, 2000, 3000, and 4000 hertz were 40 decibels or greater. The Board acknowledges that the audiologist indicated that mixed hearing loss is not consistent with hazardous noise exposure but gave no explanation, did not cite any medical literature, and did not address the causes for mixed hearing loss and whether any are applicable in this Veteran’s case. As such, the Board finds the VA audiologist's opinion to be of reduced probative value. There is competent evidence of a current disability in the left ear but no diagnosis for the right ear, evidence of noise exposure, a report of hearing loss in service, and some evidence against the theory that the Veteran’s mixed left ear hearing loss was not caused or aggravated by military noise exposure but that opinion does not address all possible theories. The Board finds that service connection for left ear hearing loss is warranted on the basis of a relatively equal balance of evidence both for and against awarding the benefit. See 38 U.S.C. § 5107(b); Gilbert, supra. Martina D. Mills Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E.Long-Ellis, 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.