Citation Nr: 21025033 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 15-32 196 DATE: April 27, 2021 ORDER Entitlement to service connection for right ear hearing loss, for substitution purposes, is denied. REMANDED Entitlement to service connection for left ear hearing loss, for substitution purposes, is remanded. FINDING OF FACT The Veteran does not have a current diagnosis of right ear hearing loss that comports with the Department of Veterans Affairs (VA) definition of a hearing loss disability. CONCLUSION OF LAW The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1969 to February 1971. He died in July 2019 while the above claims were pending. His wife, the Appellant, was properly substituted as the claimant for his pending claims in November 2019. 1. Entitlement to service connection for right ear hearing loss The Veteran contended that his right ear hearing loss is due to his in-service noise exposure. The question for the Board is whether the Veteran had a current disability for VA purposes that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran did not have a diagnosis of right ear hearing loss for VA purposes and did not had one at any time during the pendency of the claim or in close proximity to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). Certain chronic diseases such as organic disease of the nervous system such as sensorineural hearing loss will be presumed to have been incurred in or aggravated by service if they had become manifest to a degree of 10 percent or more within one year of the Veteran’s separation from service. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With chronic diseases shows as such in service or within the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date. Continuity of symptomatology is required only where the condition noted during service or the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after service is required to support the claim. 38 C.F.R. § 3.303(b). This regulation pertains to “chronic diseases” enumerated in 38 C.F.R. § 3.309(a) (listing named chronic diseases). Walker v. Shinseki, 708 F.3d 1331, 1336-37 (Fed. Cir. 2013). The United States Court of Appeals for the Federal Circuit (Federal Circuit) noted that the requirement of showing a continuity of symptomatology after service is a “second route by which a veteran can establish service connection for a chronic disease” under subsection 3.303(b). Walker, supra. Showing a continuity of symptoms after service itself “establishes the link, or nexus” to service and also “confirm[s] the existence of the chronic disease while in service or [during the] presumptive period.” Id. (holding that section 3.303(b) provides an “alternative path to satisfaction of the standard three-element test for entitlement to disability compensation”). 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. When audiometric test results at a veteran’s separation from service do not meet the requirements of 38 C.F.R. § 3.385, a veteran may nevertheless establish service connection for current hearing disability by submitting medical evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). The 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. Audiometric testing from enlistment in November 1968 revealed no findings in either ear of decibel loss above 20 per Hensley, supra, or findings in accordance with the provisions of 38 C.F.R. § 3.385. Similarly, audiometric testing in October 1970 revealed no findings sufficient for VA standards. The Veteran’s service treatment records (STRs) are silent for any complaints of hearing loss. In September 2013, the Veteran was afforded a VA audiological evaluation. The puretone test results for his right ear did not meet the provisions of 3.385 and speech audiometry revealed speech recognition ability of 96 percent. After reviewing the evidence, the Board concludes that service connection for right ear hearing loss is not warranted as the Veteran did not have a diagnosis of hearing loss for VA purposes, nor did he have one at any point during the appellate period. As discussed above, in order to qualify as a disability for service connection, hearing loss must meet objective thresholds: 40 decibels or greater in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz; or when the 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. The record shows that the Veteran’s hearing loss was not incurred in service, as testing in 1968 and 1970 did not meet the mentioned criteria. The audiometric results from the September 2013 VA examination also did not meet the required criteria. Thus, service connection for right ear hearing loss is not warranted. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton, 557 F.3d at 1366; Romanowsky, 26 Vet. App. at 294; McClain, 21 Vet. App. at 321; 38 C.F.R. § 3.303 (a), (d). While the Veteran was competent to report decreased hearing, he was not competent to provide a diagnosis per VA standards in this case with regard to Hertz findings, nor is the Appellant competent to provide a diagnosis per 38 C.F.R. § 3.385 in this case. The actual objective audiometric findings and the findings of the VA examiner are more probative. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). In summary, the preponderance of the evidence weighs against finding in favor of the Veteran’s claim for service connection for right ear hearing loss; therefore, the benefit-of-the-doubt rule does not apply, and the claim must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. REASONS FOR REMAND 2. Entitlement to service connection for left ear hearing loss is remanded The Appellant contends that the Veteran’s left ear hearing loss was related to noise exposure, which occurred in service. The Veteran underwent a VA audiological examination in September 2013. The Veteran was diagnosed with left ear sensorineural hearing loss for VA purposes. The examiner opined that the Veteran’s left ear hearing loss was less likely than not related to the Veteran’s service. The examiner’s reasoning relied on the Institute of Medicine (IOM), National Academy of Sciences 2006 article listed “Noise and Military service Implications for Hearing loss and Tinnitus.” The IOM concluded that based on current knowledge of cochlear physiology, there was no sufficient scientific basis for the existence of delayed-onset hearing loss. IOM did not rule out that delayed onset might exist but because the requisite longitudinal animal and human studies have not been done and based on current knowledge of acoustic trauma and the instantaneous or rapid development of noise-induced hearing loss, there was no reasonable basis for delayed-onset hearing loss. Reliance on the medical community’s uncertainty concerning the development of hearing loss long after noise exposure was inadequate. The Court has stressed that that acceptance in the scientific community is not required. See Wise v. Shinseki, 26 Vet. App. 517, 532 (2014) (“the Board, when evaluating [record] evidence, cannot demand a level of acceptance in the scientific community [(51%)] greater than the level of proof required by the benefit of the doubt rule [(50%)”). Based on the above, the Board finds that a medical addendum should be provided. The matters are REMANDED for the following action: 1. Obtain a VA addendum opinion from an appropriately qualified, examiner to determine the etiology of the Veteran’s left ear hearing loss. The examiner should review the record prior to providing an opinion. The examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that his left ear hearing loss had its onset in active service, is otherwise caused by active service, or had its onset within one year of the Veteran’s separation from active service. The examiner must: 1) address any threshold shifts noted during service; 2) address the Veteran’s assertion of diminished hearing loss since service, to include any post-service noise exposure; and, address the Veteran’s in-service military occupational specialty and the corresponding level of noise exposure. A complete rationale must be provided. In rendering the above opinion, the examiner is advised that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. Also, the examiner is reminded that sole reliance on the 2006 IOM report is not adequate. Further, the examiner must address the left ear threshold noted on the Veteran’s October 1970 separation examination as compared to the November 1968 entrance examination. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. J. Connolly Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Costello, 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.