Citation Nr: 21020869 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 16-21 334 DATE: April 8, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT The evidence is in relative equipoise on the issue of whether the Veteran incurred bilateral hearing loss due to active duty service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1112, 5107 (b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1976 to December 1978, from March 2002 to July 2002, October 2003 to December 2003, August 2004 to February 2005, and from May 2006 to July 2006. The Veteran also had National Guard service for a total of 28 years, 7 months, and 2 days of net service. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. The Veteran’s claims were previously remanded by the Board in a June 2020 decision. The Board finds that the RO has substantially complied with the June 2020 Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for bilateral hearing loss The Veteran seeks service connection for bilateral hearing loss and contends his disability is due to acoustic trauma caused by his military occupational specialty (MOS) requiring him to supervise aircraft and machinery operating inside a hardened aircraft shelter made of concrete and steel. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purposes of applying the laws administered by VA, 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. 38 C.F.R. § 3.385. For Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as hearing loss, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309 (a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303 (b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 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). The United States Court of Appeals for Veterans Claims (Court) has held that service connection can be granted for a hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for a hearing loss which first met VA’s definition of disability after service. Hensley, 5 Vet. App. at 159. As an initial matter, the AOJ has conceded noise exposure due to the Veteran’s MOS as a tactical aircraft maintenance specialist. Turning to the evidence, the Veteran’s spouse submitted a lay statement indicating the Veteran had difficulty understanding speech after returning from a deployment to Iraq, but before his discharge from service. The Veteran’s service treatment records contain numerous audiometry tests including several indicating a significant threshold shift. The Veteran was afforded a VA examination in May 2012 for bilateral hearing loss and tinnitus. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 5 0 0 10 LEFT 10 10 10 15 15 The Board notes that the Veteran also had thresholds of 25 dB on the right and 60 dB on the left at 8000 Hz. Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 100 percent in the left ear. The examiner diagnosed the Veteran with normal hearing on the right and sensorineural hearing loss in the frequency range of 6000 Hz or higher on the left. The examiner indicated that the Veteran did not have disabling hearing loss for VA purposes. In May 2020, the Veteran underwent a private hearing evaluation with an audiologist, K.W. The audiological evaluation showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 25 30 LEFT 20 15 25 30 30 The Veteran was diagnosed with normal-moderate sensorineural hearing loss in the right ear and normal-moderate sensorineural sloping hearing loss in the left ear. Dr. K.W. opined that the Veteran’s hearing loss and tinnitus are at least as likely as not related to his military noise exposure. In its June 2020 remand decision, the Board found that this examination constituted hearing loss for VA purposes. In August 2020, the Veteran was afforded another VA examination. The Veteran reported that he keeps the TV too loud and has difficulties with conversational speech. The Veteran also reported he was exposed to loud noise in a concrete shelter during service. He reported his hearing rapidly declined in 2006 while in service in Iraq. The Veteran also reported tinnitus. The Veteran reported no occupational or recreational noise exposure post-service. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 20 20 35 LEFT 20 20 30 40 40 The Board also notes the Veteran had thresholds of 40 dB at 6000 Hz and 70 dB at 8000 Hz on the right and 65 dB at 6000 Hz and 80 dB at 8000 Hz on the left. Speech audiometry revealed speech recognition ability of 74 percent in the right ear and of 70 percent in the left ear. The Veteran was diagnosed with sensorineural hearing loss (in the frequency range of 500-4000 Hz) bilaterally. The examiner indicated that the Veteran’s last test from service (dated February 6, 2007) was well within normal despite there being a significant threshold shift at 4000 Hz compared to his December 31, 1975 entrance examination. The examiner indicated that the significant threshold shift is consistent with aging effects, but the Board notes that it still occurred during the Veteran’s long career in service. The Board also notes that the examination did not address the lay statements from the Veteran or his buddy statements contained in the record, nor did it consider the private audiology opinion. A different VA audiologist submitted an addendum opinion in September 2020. The audiologist opined there was no nexus between the Veteran’s in-service acoustic trauma and his current hearing loss. The audiologist also indicated that the August 2020 VA examiner used incorrect thresholds when discussing right ear hearing loss. This VA audiologist did not, however, address the May 2020 opinion of the Veteran’s private audiologist nor did it address the Veteran or his buddy’s lay statements. At the March 2020 Board hearing, the Veteran testified that his job during service was as an aircraft technician. The Veteran reported he had to read people’s lips to communicate and has difficulty communicating with his wife and others. The Veteran also testified that he had ringing in his ears during service but was afraid to report it due to risk of losing his job. So, the Board finds that the Veteran has a diagnosed disability of bilateral hearing loss. Therefore, Shedden element (1) has been satisfied. The Board also finds the Veteran’s contentions regarding his in-service noise exposure to be competent and credible. His Certificate of Release or Discharge confirms his MOS was as an aircraft technician. His MOS is consistent with the Veteran’s claim of acoustic trauma. Therefore, the Board acknowledges that the Veteran was exposed to loud noise during service and Shedden element (2) has also been satisfied. The Board finds each of the opinion regarding nexus of probative value. Each opinion is based on a familiarity with the Veteran’s hearing problems, is based on the evidence of record, and is explained. See Bloom v. West, 12 Vet. App. 185, 187 (1999). As such, the Board cannot find that a preponderance of the evidence is against the claim to service connection for bilateral hearing loss. Rather, the evidence is in equipoise as to whether the hearing loss disability is related to the Veteran’s duties during service. Therefore, it is appropriate to invoke VA’s doctrine of reasonable doubt and grant the claim. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. As a final note, the Board encourages the Veteran to file a supplemental claim for his bilateral tinnitus. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.D. Taylor, 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.