Citation Nr: 21021043 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 20-30 169 DATE: April 9, 2021 ORDER Service connection for bilateral hearing loss is granted. REMANDED The claim for service connection for a neck condition is remanded. FINDING OF FACT Evidence supports the finding that the Veteran experienced diminished hearing acuity during service, which has deteriorated over the years such that it is currently considered to constitute a bilateral hearing loss disability for VA purposes. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the Army from October 1963 to October 1965. Hearing Loss The Veteran is seeking service connection for bilateral hearing loss, which he believes, is a result of military noise exposure during service. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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 (nexus). Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). In addition, service connection may also be established under 38 C.F.R. § 3.303(b), where a symptom of a chronic disease is noted in service without diagnosis in service or within one year from service, but chronicity is established by continuity of symptomatology after service. This is an alternative way to establish service connection for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1131 (Fed. Cir. 2013). An August 2020 rating decision granted service connection for tinnitus based on an August 2020 VA medical opinion which indicated that the Veteran was exposed to gun fire during service. As such, military noise exposure was previously conceded by VA. However, military noise exposure alone is not considered to be a disability; rather, it must be shown that the military noise exposure caused a hearing loss disability for VA purposes. For VA purposes, hearing loss will be considered to be a disability when (1) the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or (2) the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or (3) when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran was afforded a VA examination in July 2020, which showed the following results: HERTZ 500 1000 2000 3000 4000 Maryland CNC Right 25 40 65 80 90 66% Left 35 50 80 85 85 48% As such, a hearing loss disability was confirmed in both ears for VA purposes. The examiner opined that the Veteran’s bilateral hearing loss was less likely than not (less than 50 percent probability) caused by or a result of his military noise exposure, because Veteran’s hearing thresholds in both ears were within normal limits at the time of his separation. Additionally, the examiner opined that the Veteran’s MOS as a Supply Clerk created a low probability for noise exposure. However, VA has conceded the Veteran’s noise exposure during service. The miliary personnel records (DD214) show that the Veteran was issued a marksman badge (Rifle M-14), and he credibly testified at his Board hearing in January 2021 that he was exposed to a significant amount of miliary noise, that he recalled having difficulty hearing instructions from his first sergeant while standing in formation, and that he had consistently experienced hearing problems since service. Service treatment records (STRs) contained an audiogram conducted in August 1965. Because it is unclear whether such thresholds were recorded in using American Standards Association (ASA) units or International Standards Organization-American National Standards Institute (ISO-ANSI) units, the Board will consider the recorded metrics under both standards, relying on the unit measurements most favorable to the Veteran’s appeal. 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 light of the above, and where necessary to facilitate data comparison for VA purposes in the decision below, including under 38 C.F.R. § 3.385, audiometric data originally recorded using ASA standards will be converted to ISO-ANSI standard by adding between 5 and 15 decibels to the recorded data as follows: Hertz 250 500 1000 2000 3000 4000 6000 8000 add 15 15 10 10 10 5 10 10 The results of the audiometric testing at separation showed (with ISO-ANSI conversion in parentheses): HERTZ 500 1000 2000 3000 4000 Right 5 (20) 15 (25) 5 (15) - 10 (15) Left 15 (30) 15 (25) 25 (35) - 10 (15) The Court has specifically held that a veteran was competent to describe the observable, non-medical symptoms of his hearing disability, including the onset of his hearing loss. See Charles v. Principi, 16 Vet. App. 370 (2002). Here, the Veteran showed some hearing loss in both ears at separation once the results have been converted. Moreover, the Veteran credibly testified at his hearing before the Board to recalling specific instances of difficulty hearing while in service. The Board finds the Veteran is competent to report diminished hearing acuity that was noticeable during service, and his testimony is credible as he gave a specific example of how he noticed his hearing problems during service. His testimony suggested that the hearing loss was present during service and has deteriorated over the years. Accordingly, service connection for bilateral hearing loss is granted based on a finding of continuity of symptomatology since service. REASONS FOR REMAND The Veteran is seeking service connection for a neck condition, which he believes, was caused by a neck injury that occurred in service. STRs show that the Veteran slipped and fell on stairs in September 1965 while he was stationed in Germany, and that he was hospitalized for nine days. The hospital records show that he had severe pain in the neck and that he was placed on bed rest with hot water bottles applied to the neck and head kept immobilized with sand bags. X-rays done at that time showed that bone structures appeared to be normal, and he was diagnosed with strain in cervical muscles. The separation physical dated August 1965 showed normal neck condition and the Veteran did not report any neck problems at his report of medical history in conjunction with the separation physical while reporting other medical conditions such as whooping cough and mumps. However, the separation physical and medical history survey appear to have been completed before the Veteran’s neck injury, which occurred approximately a month before he separated from service. VA examination in July 2020 diagnosed an old nonunited fracture at the base of the Odontoid. The examiner opined that the condition is less likely than not (less than 50 percent probability) incurred in or caused by his service, to include the inservice neck injury. The examiner explained that the Veteran signed off at separation that he had not previously worn a brace or back support, that he had not had any bone, joint or other deformity, and that his health was good at the time he was separating from the service, but the examiner missed the fact that the injury occurred after the separation physical had taken place, making the opinion potentially based on an inaccurate factual premise. The examiner also pointed out that there were no records, including hospital records, indicating a neck fracture until the 2015 x-rays by his private physician. Private medical records from Dr. Skocik show that the Veteran was seen in September 2015 and he complained of pain in his neck after an injury occurred approximately 50 years ago. X-rays in September 2015 showed that there was a nonunited fracture at the base of the Odontoid, which appeared to be chronic. No acute fracture or significant degenerative disc disease (DDD) was reported. However, the x-rays did not show when exactly this old neck fracture occurred. The Veteran stated in his Board hearing in January 2021 that he had seen this physician, Dr. Skocik, for 28 years. However, only several pages of 2015 treatment records from this physician have been associated with the file. Accordingly, further development is warranted. Therefore, the matter is REMANDED for the following actions: 1. With the assistance of the Veteran, use reusable effort to obtain complete medical records from Dr. Skocik. 2. Obtain a VA medical opinion to address the etiology of the Veteran’s neck disability. The examiner should answer the following question: Is it at least as likely as not (50 percent or greater) that the Veteran’s neck condition (to include old nonunited fracture at the base of the Odontoid) either occurred during or was otherwise caused by his military service (to include his neck injury in service)? Why or why not? In doing so, the examiner should note that the Veteran’s separation physical showing a normal neck was conducted prior to his in-service neck injury in September 1965. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jennifer M. Narvaez, 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.