Citation Nr: 21025077 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 19-00 623 DATE: April 27, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT Resolving all reasonable doubt, bilateral hearing loss is attributable to service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 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 in the United States Army from July 1960 to July 1963. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107 (a)(2); 38 C.F.R. § 20.900(c). In a February 2019 Board decision, the Veteran was denied service connection for a bilateral hearing loss disability. Subsequently, the Veteran appealed to the Court of Appeals for Veterans Claims (CAVC), and in a December 2019 Joint Motion for Remand (JMR), CAVC vacated the August February 2019 Board decision and remanded the claim back to the Board. The Board then remanded the claim for additional development in June 2020. 1. Entitlement to service connection for bilateral hearing loss is granted. Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active service. 38 U.S.C. §§ 1110, 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Applicable regulations provide that impaired hearing shall be considered a disability when the auditory thresholds in any of the frequencies of 500, 1000, 2000, 3000, and 4000 hertz are 40 decibels or greater; the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores are 94 percent or less. 38 C.F.R. § 3.385 does not preclude service connection for a current hearing loss disability where the Veteran’s hearing was within normal limits on audiometric testing at separation from service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Rather, 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 v. Brown, 5 Vet. App. 155, 157 (1993). VA shall consider all information and lay and medical evidence of record in a case, and, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran generally contends that he has had bilateral hearing loss since service. Specifically, he contends that upon exit from service he had developed hearing loss working as a Morse code operator and was subjected to high frequency hearing loss as he had to listen with a headset on all the time. Alternatively, the Veteran reported that he was exposed to in-service acoustic trauma when a hand grenade exploded close to his head. As an initial matter, the Board notes that a bilateral hearing loss disability as defined at 38 C.F.R. § 3.385 is shown and in-service noise exposure has been conceded. The Veteran’s service treatment records (STRs) show on service entry, in 1960, audiometric findings were not recorded. Rather, the examination report shows whisper voice findings of 15/15 for each ear. A June 1963 separation examination include audiometric findings. In light of the date of the examination prior to enlistment, audiometric data originally recorded using the American Standards Association (ASA) standard has been converted to the International Standards Organization-American National Standards Institute (ISO-ANSI) standard by adding 15 decibels at 500 hertz, 10 decibels at 1000, 2000, and 3000 hertz, and 5 decibels to 4000 hertz. The following are the audiological findings converted to the ISO-ANSI standard: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 20 -- 15 LEFT 25 20 20 -- 15 Post-service VA treatment records show the Veteran complained of hearing loss in September 2005. He reported he has intermittent bilateral hearing loss without tinnitus or vertigo, which he associates the onset with a motor vehicle accident in March 2005. In a November 2005 VA progress note, the Veteran reported he is not able to hear his alarm clock when he sleeps on his right side. He mentioned that his wife often complaints that he has the television turned too loud. He stated he was in an accident in July and is not sure if that is the cause of his loss. The examiner referred to an audiogram which showed normal bilateral hearing sloping to moderate-severe sensorineural hearing loss at 3000Hz and rising to mild at 6000-8000Hz. The Veteran underwent a VA examination in January 2018 which showed hearing loss for VA compensation purposes. After audiological examination, the examiner noted that there is no valid pre-service testing is available, only whisper test which is not a reliable indicator of hearing loss. Separation audiogram showed normal hearing thresholds of 10dB across test frequencies. In view of the presence of normal hearing at separation, with lack of evidence in the record of significant threshold shift during time in service, the examiner opined that it is less likely than not that the Veteran’s current hearing loss is related to military noise exposure. As the examiner failed to account for the ISO-ANSI conversion and failed to address conceded in-service noise exposure, the parties agreed the opinion was inadequate in the December 2019 JMR and the Board remanded the claim in June 2020 for an additional VA hearing loss examination. The examiner underwent an additional VA examination in January 2021. The examiner noted that there was no auditory entrance examination. There was only a whispered voice test which the examiner stated was not a valid measure of hearing sensitivity. The examiner indicated that there is normal hearing on separation with thresholds too low for any permanent significant shift in hearing thresholds to have occurred from entrance. This is evidence of no permanent auditory damage on active duty. The examiner indicated that there is no report of decreased hearing in the claims file or at separation. The examiner stated that although noise exposure is conceded, including exposure to a hand grenade explosion at close proximity, and the relationship between noise, auditory damage and hearing loss is well documented, auditory damage and hearing loss are not conceded based on noise alone, therefore a nexus is not established. The Board notes that the medical opinion is unclear. The examiner indicated that there were no valid audiometric findings at entrance for review, but then indicated that there was no significant threshold shifting since entrance. The examiner stated that there was normal hearing at separation, but the first threshold results show hearing loss per Hensley. The examiner then listed the Veteran’s risk factors for hearing loss, including exposure to a hand grenade explosion at close proximity, and noted that the relationship between noise, auditory damage and hearing loss is well documented, but then stated that auditory damage and hearing loss are not conceded based on noise alone without giving adequate rationale why there is no nexus particularly given the 500 Hertz finding. The examiner noted that “the relationship between noise, auditory damage and hearing loss is well documented.” In this case, the Veteran had noise exposure and the evidence tends to show that it did in fact result in auditory damage. In sum, the Veteran had noise exposure during service including from a hand grenade explosion. Per Hensley, hearing loss was then shown on 500 Hertz on the separation examination. The negative medical opinions are incomplete and unclear for the reasons stated above. Conversely, the Veteran has credibly and competently reported having decreased hearing since service and his history is consistent with his statements. Based on the inservice findings, current diagnosis, and the credible and competent lay evidence, the Board finds that in affording the Veteran all reasonable doubt, bilateral hearing loss is attributable to service. J. Connolly Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. M. Donahue Boushehri, 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.