Citation Nr: 21022610 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 18-20 386 DATE: April 16, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran does not have a current hearing loss disability for Department of Veterans Affairs (VA) purposes. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Air Force (USAF) from September 1962 to July 1967. This appeal comes to the Board of Veterans’ Appeals (Board) from a Department of Veterans Affairs (VA) June 2014 rating decision of the Agency of Original Jurisdiction (AOJ). The Veteran appeared before the undersigned Veterans Law Judge in an October 2019 Board hearing. A transcript of the hearing has been reviewed by the Board, and has been associated with the claims file. In February 2020 the Board remanded the case to the AOJ for additional development. A Board remand confers upon the appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Substantial compliance, rather than strict compliance, is required. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). After a review of the evidence added to the record in the time since the February 2020 remand, the Board finds that the AOJ conducted additional development as directed, and that there has been substantial compliance with the remand directives. 1. Entitlement to service connection for bilateral hearing loss The Veteran contends that his bilateral hearing loss is due to his active duty military 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; 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 such as organic diseases of the nervous system (including sensorineural hearing loss) based upon a legal presumption by showing that the disease manifested 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 1331 (Fed. Cir. 2013). Hearing loss disability is defined by regulation. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be 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. The United States Court of Appeals for Veterans Claims (Court) has held that “the threshold for normal hearing is from 0 to 20 dB [decibels], and higher threshold levels indicate some degree of hearing loss.” See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court, in Hensley, 5 Vet. App. 155 (1993), indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran’s service and his current disability. The Board notes that the Court’s directives in Hensley are consistent with 38 C.F.R. § 3.303(d) which provides that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R.§ 3.303(d). The Veteran contends that he was exposed to acoustic trauma during service. Acoustic trauma can cause permanent hearing loss, but does not necessarily do so. See Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). Acoustic trauma has been conceded in this instance, as the Veteran served in and around the flight line while on active duty. VA assumes that hearing tests conducted prior to January 1, 1967 were conducted using the American Standards Association (ASA) units rather than under the currently utilized International Standards Organization - American National Standards Institute (ISO-ANSI) units. Where necessary to facilitate data comparison for VA purposes between the two standards, VA has determined that it is appropriate to convert ASA measurements to ISO-ANSI measurements. In light of the above, and to facilitate this 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: 15 at 500 Hz, 10 at 1000 Hz, 10 at 2000 Hz, 10 at 3000 Hz, and 5 at 4000 Hz. The Board notes further, that its current policy regarding audiometric readings is, if the audiometric standard used is not clearly indicated in the medical record, to assume that: 1) prior to January 1, 1967 the ASA standard was used; 2) between January 1, 1967 and December 31, 1970 data under both ASA and ISO-ANSI standards will be considered; and 3) after December 31, 1970, the ISO-ANSI standard was used. Regarding the period of January 1, 1967 to December 31,1970, veterans will be given the benefit of the doubt and the most favorable measurements will be applied. The units as recorded in the examination reports have been converted to ISO-ANSI units, which are represented by the figures in parentheses below. While he was on active duty, the Veteran underwent multiple audiometric examinations. The first was in September 1962, upon his enlistment. The results of that examination are: HERTZ 500 1000 2000 3000 4000 CNC Right 10 (25) 10 (20) 10 (20) N/A 15 (20) N/A Left 10 (25) 10 (20) 10 (20) N/A 15 (20) N/A In February 1964 the Veteran underwent another audiometric examination. The results of the examination are: HERTZ 500 1000 2000 3000 4000 CNC Right 0 (15) 0 (10) 5 (15) 5 (15) 5 (10) N/A Left 5 (20) 5 (15) 0 (10) 5 (15) 5 (10) N/A In May 1967, at his separation examination, the Veteran underwent a final audiometric examination while in service. The results are as follows: HERTZ 500 1000 2000 3000 4000 CNC Right 0 (15) 5 (15) 5 (15) 5 (15) 0 (5) N/A Left 0 (15) 5 (15) 5 (15) 5 (15) 0 (5) N/A None of the in-service audiograms show a hearing loss disability per 38 C.F.R. § 3.385, nor do the Veteran’s service treatment records (STRs) show any complaints of hearing difficulties. In 2012 the Veteran was seen for a VA examination to determine the severity of his   hearing loss. The results of the examination are as follows: HERTZ 500 1000 2000 3000 4000 CNC Right 20 20 25 25 20 100% Left 20 15 25 25 20 100% On VA outpatient audiological assessment in December 2014, the Veteran reported that he had decreased hearing, bilaterally. It was noted that the Veteran was last evaluated by VA in January 2013 and hearing was within normal limits. Following evaluation, the examiner noted that hearing was again within normal limits and that compared to the January 2013 hearing test, all puretone air conduction thresholds were stable; because hearing was stable and was within normal limits bilaterally, bone conduction testing was not completed. The Veteran was seen again in February 2016 for an audiological assessment and the examiner noted that the Veteran’s previous hearing evaluation and the current objective test results were not in agreement with the Veteran’s subjective responses during testing. After a lengthy discussion regarding the necessity of valid test results, SRTs were able to be obtained in the range of normal hearing. The Veteran was advised to return to complete the testing due to time constraints. The remaining testing was conducted in March 2016. At that time, the examiner noted that the reported results were considered fair but were possible slightly elevated due to the Veteran’s initial inability to provide valid threshold-level responses. Following repeat testing, the examiner concluded that the Veteran had binaural flat borderline to normal hearing to mild sensorineural hearing loss. The examiner concluded further that the test results were only fair in terms of reliability and made the Veteran an extremely “borderline” candidate for hearing aids, however, “gentle amplification” was being considered primarily for tinnitus management purposes. In a June 2017 VA cognitive care consult, the Veteran was noted to have hearing aids, but did not wear them often. In November 2017, the Veteran was seen for a hearing aid follow up. It was noted that datalogging revealed that the Veteran was wearing the right hearing aid .7 hours per day; and the left .4 hours per day; he was encouraged to wear the aids during all waking hours for both hearing and tinnitus management. No audiometry testing appears to have been conducted at that time. On March 2019 VA geriatric medicine consult, the Veteran was noted to have some age-related history of declining ability to hear and history of having hearing aids. In August 2019, a subjective review found his hearing to be “poor”. Again, no audiometry testing was conducted at that time. In a March 2020 VA neurology note, the Veteran’s hearing was noted to be normal to spoken voice. At his October 2019 Board hearing, the Veteran testified that he underwent an audiometric examination “in 2018.” A review of the Veteran’s medical treatment records shows the above described relevant outpatient visits. There is no other evidence in the Veteran’s medical treatment files that he had an audiometric examination in or around 2018. Therefore, the Board is interpreting his October 2019 testimony broadly as he likely was referring the 2016 or 2017 evaluations as outlined above. In December 2020, pursuant to the Board’s February 2020 remand directives, the Veteran was seen for another VA audiometric examination to determine the severity of the Veteran’s hearing loss disability. The results are as follows: HERTZ 500 1000 2000 3000 4000 CNC Right 15 20 25 25 30 96% Left 15 20 25 20 30 96% The examiner noted that the Veteran’s initial MOS of security forces and specifically, aircraft guard for two to three years had a high probability of hazardous noise exposure. However, the audiometric evidence in the service treatment records do not support a change in auditory function due to noise exposure, and therefore, it is less likely than not that the Veteran’s current hearing loss is caused by or is a result of an event in military service. The examiner stated that the Veteran’s hearing loss did not have its onset in service, was not manifest within one year of service and is not otherwise related to any in-service disease, event ot injury to include conceded in-service acoustic trauma. The examiner explained that there was no change in auditory function in service; that the Veteran transitioned to an MOS in administration with a low probability of hazardous noise exposure during the last several years of service; and that VA examinations in March 2012 and December 2014 showed normal hearing, bilaterally, 40 years following separation from service. The Board notes that there is no contrary competent, credible, and probative evidence of record. Further, while the December 2020 VA examiner found that the Veteran had bilateral sensorineural hearing loss, the level of the impairment does not rise to the level of a disability per 38 C.F.R. § 3.385. The Board recognizes that the Veteran has complained of worsening hearing, as shown by his need for hearing aids which have been prescribed for management of hearing loss and tinnitus. However, the diagnosis and measurement of a hearing loss disability is something that can only be done by qualified medical professionals. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The most reliable audiometric examinations of record which are the VA examinations conducted many years apart in the Veteran’s medical history do not show a hearing loss disability within the parameters of 38 C.F.R. § 3.385. The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997). Accordingly, since the most probative evidence establishes that the Veteran has no bilateral hearing loss under 38 C.F.R. § 3.385, service connection for bilateral hearing loss is not warranted. Therefore, the Veteran’s claim for entitlement to service connection for bilateral hearing loss must be denied.   As the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt doctrine does not apply. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Neville, 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.