Citation Nr: 21021578 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 16-04 850 DATE: April 13, 2021 ORDER Entitlement to service connection for a bilateral hearing loss disability is granted. FINDING OF FACT The Veteran is currently diagnosed with bilateral hearing loss; the Veteran was exposed to acoustic trauma during service; the current bilateral hearing loss is etiologically related to the in-service acoustic trauma. CONCLUSION OF LAW The criteria for entitlement to service connection for a bilateral hearing loss disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1970 to December 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board in September 2019. Entitlement to service connection for a bilateral hearing loss disability The Veteran has asserted that his current bilateral hearing loss is due to his significant in-service noise exposure from artillery fire and radios without hearing protection. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection for impaired hearing is subject to the additional requirement of 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability only if at least one of the thresholds for the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of the frequencies are greater than 25 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. See also Hensley v. Brown, 5 Vet. App. 155 (1993). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107 (b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. Id; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). “It is in recognition of our debt to our veterans that society has [determined that,] [b]y tradition and by statute, the benefit of the doubt belongs to the veteran.” Gilbert, 1 Vet. App. At 54. Service treatment records from December 1971 note an ENT clinic visit where the Veteran had a provisional diagnosis of hearing loss secondary to acoustic trauma. Furthermore, the treating physician noted that the Veteran had been exposed to a large amount of noise throughout his service career. Additionally, the Veteran denied ear infections, vertigo, and exposure to ototoxic drugs. The Veteran had an audiological examination in December 2013, in which he was diagnosed with bilateral hearing loss. The examination revealed the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 25 40 70 LEFT 20 20 25 45 55 Maryland CNC speech recognition testing was 98 percent for the right ear and 100 percent for the left ear. The examiner opined that the Veteran’s bilateral hearing loss was less likely than not a result of military noise exposure. The examiner stated that a comparison of the enlistment and separation audiograms showed a decrease in hearing at 500, 1000, and 2000 Hz in the right ear only with no significant changes in the left ear. The examiner noted that the changes at 500-2000 Hz are unlikely due to noise exposure, as noise affects the high frequencies, not low and mid frequencies. In a February 2014 statement, the Veteran stated that he was a “fire direction chief in the Army while stationed in Viet Nam, the duties included, computing data for artillery rounds.” The Veteran further stated that the “noise was constant” and he was not issued proper ear protection. Additionally, in a January 2016 statement the Veteran indicated that he sought treatment for his hearing loss in the 1970s and 1980s. In private treatment records from October 2019, Dr. D.C. indicated that the Veteran has noticed that he has had increasing ringing in both of his ears and that he feels like his hearing has gotten worse since it was last tested. The Veteran reported that he was in an artillery unit and worked in a radio room during his service around the time of the Vietnam war. Dr. D.C. opined that the “loss pattern is certainly more consistent with the potential for sound trauma to have induced his hearing issues than anything else.” The Veteran had another audiological examination in March 2020, which confirmed a diagnosis of bilateral hearing loss. The examination revealed the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 20 40 70 LEFT 10 15 20 45 80 Maryland CNC speech recognition testing was 94 percent for both the right ear and left ear. The examiner opined that the Veteran’s bilateral hearing loss was less likely than not a result of military noise exposure. The examiner stated that all audiograms found in the Veteran’s service treatment records indicate hearing within normal limits. The examiner did note a slight shift in the low frequencies in the right ear on a 1971 examination. However, the examiner stated that it was not significant and low frequency change is not indicative of noise trauma. The examiner further noted that current examination results do not reflect a similar shift, so it is possible the low frequencies recorded on that day were artifact from noise or headphone placement or could have been indicative a transient condition such as an ear infection. In a September 2020 addendum medical opinion, the examiner noted that the Veteran reported tinnitus beginning about 10 years after he left the service during his March 2020 examination. The examiner stated that a review of all service era audiograms indicates no significant change in hearing and no report of tinnitus. The examiner stated that this is in agreement with the lay statement as the Veteran indicated his issues began about a decade after he left the service. The examiner concluded that based on the evidence in the service medical record and the lay statement, it is not likely that his current hearing loss and tinnitus are due to his military service and the lay statements and the medical evidence in the service medical record are in agreement. The Veteran has described significant in-service noise exposure. The Board finds his statements in this respect to be both competent and credible. Thus, the Board finds that in-service noise exposure has been established. The record also clearly reflects that the Veteran has a current hearing loss disability which meets the criteria set forth in section 3.385, as evidenced by the VA audiometric test findings. Thus, the crucial question in this matter is whether the in-service noise exposure resulted in the current bilateral hearing loss disability. The Board finds the December 2013, March 2020, and September 2020 medical opinions to be inadequate. The December 2013, March 2020, and September 2020 medical opinions did not adequately address the Veteran’s competent and credible lay statements of in-service noise exposure and continuity of hearing loss symptoms since separation from service. Furthermore, the December 2013, March 2020, and September 2020 medical opinions did not address the December 1971 diagnosis of hearing loss noted in the Veteran’s service treatment records. As a result, the December 2013, March 2020, and September 2020 etiological opinions regarding the Veteran’s hearing loss are inadequate as they are based on an incomplete medical history. Alternatively, the Board finds the October 2019 private medical opinion from Dr. D.C. to carry more probative weight because the opinion adequately accounted for the Veteran’s competent and credible lay statements of in-service noise exposure. The weight of the competent medical evidence of record demonstrates that the Veteran’s current bilateral hearing loss is related to exposure to acoustic trauma during active service. Accordingly, the Board finds that service connection for bilateral hearing loss is warranted, and service connection for bilateral hearing loss is granted. E. Choi Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David M. Sebstead, 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the “Order.” If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board’s decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: • Appeal to the United States Court of Appeals for Veterans Claims (Court) • File with the Board a motion for reconsideration of this decision • File with the Board a motion to vacate this decision • File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: • Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. § 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. § 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. § 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court’s website at: http://www.uscourts.cavc.gov. The Court’s website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court’s website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. § 5904; 38 C.F.R. § 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board’s decision. See 38 C.F.R. § 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. § 5904; 38 C.F.R. § 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. § 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. § 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. § 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED