Citation Nr: 21026138 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 16-37 918 DATE: April 29, 2021 ORDER Entitlement to service connection for right ear hearing loss is granted. REMANDED Entitlement to service connection for left ear hearing loss is remanded. FINDING OF FACT The Veteran’s right ear hearing loss is etiologically related to service. CONCLUSION OF LAW The criteria for service connection for right ear hearing loss have been met. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1987 to July 1991 and September 1995 to December 2004. This matter comes to the Board of Veterans’ Appeals (Board) from a September 2013 rating decision which, in pertinent part, denied entitlement to service connection for bilateral hearing loss. In March 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board notes that VA examinations and treatment records pertinent to the Veteran’s claim were added to the claims file after the June 2016 Statement of the Case. Although the Veteran has not waived initial agency of jurisdiction (AOJ) review of this evidence, the Board finds that there is no prejudice regarding right ear hearing loss because this decision constitutes a full grant of the benefit sought and no prejudice regarding left ear hearing loss because remand is required for other reasons and the AOJ can consider this additional evidence on remand. Entitlement to service connection for right ear hearing loss is granted. Service connection may be granted for a disability resulting from an injury incurred in active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, a veteran must establish: (1) evidence of a current disability; (2) in-service incurrence or aggravation of an injury; and (3) a causal relationship between the current disability and the injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For purposes of a claim of service connection for hearing loss, a veteran’s hearing loss will be considered a current disability only when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; when the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC test are less than 94 percent. See 38 C.F.R. § 3.385. Before turning to the evidence of record, the Board notes that an April 2013 memorandum made a formal finding on the unavailability of service treatment records. While the Board will discuss the service audiograms in the claims file, the absence of other service audiograms is moot in light of recent opinions that the Veteran’s current right ear hearing loss is etiologically related to service. A November 1992 enlistment audiogram into the Army National Guard showed the following audiometric results: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 0 5 0 LEFT 5 0 15 0 5 An August 1995 enlistment audiogram into the Army National Guard showed the following audiometric results: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 10 0 0 LEFT 0 0 10 0 5 A February 2001 periodic audiogram showed the following audiometric results: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 10 0 5 LEFT 5 0 10 0 5 A December 2004 audiogram showed the following audiometric results: HERTZ 500 1000 2000 3000 4000 RIGHT 15 0 0 0 5 LEFT 10 0 10 0 10 The audiogram stated that the Veteran was routinely noise exposed. A private audiogram with an identified test date of January 16, 2011, but a signature date of January 16, 2012, showed the following audiometric results: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 30 25 30 LEFT 15 5 20 15 35 Speech audiometry revealed speech recognition ability of 100 percent in both ears. The Veteran reported loud explosions during service, to include while stationed in Germany and Saudi Arabia, and reported no loud noise exposure after service. The audiologist opined that, based on the Veteran’s noise exposure during and after service, the Veteran’s hearing loss was as likely as not caused by noise exposure during service. (Continued on the next page.)   A July 2012 audiogram at a VA audiology consultation showed the following audiometric results: HERTZ 500 1000 2000 3000 4000 RIGHT 15 25 30 20 30 LEFT 15 15 20 20 25 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 100 percent in the left ear. A June 2013 audiogram at a VA examination showed the following audiometric results: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 15 15 LEFT 10 5 15 15 15 Speech audiometry revealed speech recognition ability of 96 percent in both ears. The examiner reviewed the Veteran’s claims file and performed an in-person examination of the Veteran. The examiner opined that the Veteran’s hearing loss was less likely than not related to service. The examiner noted that 1992 and 2004 audiograms were normal and that there was no significant threshold shift from induction to discharge. The examiner also cited the Institute of Medicine indicating that a delay of many years in the onset of noise-induced hearing loss following earlier noise exposure is extremely unlikely and that the most pronounced effects of a given noise exposure are measurable immediately following the exposure. A January 2019 audiogram at a VA audiology consultation showed the following audiometric results: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 10 15 20 LEFT 10 10 20 15 15 Speech audiometry revealed speech recognition ability of 95 percent in the right ear and 100 percent in the left ear. A December 2019 audiogram at a VA examination showed the following audiometric results: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 30 30 30 LEFT 20 20 30 25 35 Speech audiometry revealed speech recognition ability of 100 percent in both ears. The examiner reviewed the Veteran’s claims file and performed an in-person examination of the Veteran. The examiner opined that the Veteran’s right ear hearing loss was as likely as not related to service. The examiner stated that hazardous noise exposure on active duty was conceded. The examiner also stated that the Veteran’s description of loss of time during a scud missile attack and the description of onset of tinnitus were accurate when describing noise-induced damage to the organ of hearing. The Board notes that the Veteran was in sound condition at the entrance of service based on the incomplete service treatment records and the service audiograms that documented no hearing loss disability. The Board finds that the competent and credible evidence shows a current disability and an in-service incurrence. A current right ear hearing loss disability is established based on the December 2019 audiometric results showing three auditory thresholds of 26 decibels or greater. An in-service incurrence is established based on the December 2004 audiogram indicating the Veteran was routinely noise exposed. The Board assigns probative weight to the 2019 VA examiner’s opinion that the Veteran’s right ear hearing loss was related to service. The examiner considered the Veteran’s lay statements of noise exposure during and after service and explained that these statements were consistent with noise-induced damage to the ear. The examiner’s opinion is also consistent with the 2012 opinion from the private audiologist, who similarly considered the Veteran’s lay statements of noise exposure during and after service. Accordingly, the Board finds that the Veteran’s current right ear hearing loss disability is etiologically related to service. The Board assigns limited probative weight to the 2013 VA examiner’s negative nexus opinion. Unlike the 2019 VA examiner and the 2012 private audiologist, the 2013 VA examiner did not consider the Veteran’s lay statements of noise exposure during and after service. The 2013 examiner instead improperly relied on the absence of evidence during service based on the normal audiograms and the lack of a significant threshold shift from induction to discharge. Moreover, the 2013 examiner never quantified the Institute of Medicine’s statement regarding the delay of “many” years in the onset of noise-induced hearing loss. The Board notes that the 2012 private audiogram was only eight years after the 2004 service audiogram and the 2012 private audiogram showed reduced hearing at 2000, 3000, and 4000 Hertz. Similarly, while the 2013 examiner cited the Institute of Medicine indicating that delayed hearing loss is extremely unlikely, the examiner did not conclusively rule out this possibility. In contrast, the 2019 VA examiner opined that the Veteran’s right ear hearing loss was consistent with her descriptions of the scud attack and onset of tinnitus. Because the preponderance of the evidence supports the Veteran’s claim for service connection, the claim of service connection for right ear hearing loss is granted. REASONS FOR REMAND Entitlement to service connection for left ear hearing loss is remanded. The Board finds that it cannot make a fully-informed decision at this time because there may be outstanding audiograms. At the March 2021 hearing, the Veteran reported having regular audiology examinations since she filed her claim. The Board, however, has summarized all audiograms in the claims file, but notes no audiograms between June 2013 and January 2019. On remand, the AOJ should provide the Veteran with a VA Form 21-4142 to identify any private audiograms, to include from Marshfield Clinic, missing from the claims file. The AOJ should also update the Veteran’s VA treatment records. The Board notes that, at the March 2021 hearing, the Veteran’s representative asserted that prior audiograms showed that the Veteran’s reduced hearing did not meet the minimum requirements for service connection, but that the newer audiograms showed that those requirements were met. The Board assumes that the representative was referring to the requirements in 38 C.F.R. § 3.385. The Board, however, has summarized all audiograms in the claims file, but notes that the audiometric results of the left ear do not satisfy the requirements of 38 C.F.R. § 3.385. On remand, the representative can clarify which examinations are believed to satisfy the requirements of 38 C.F.R. § 3.385. The Board has considered the 2019 VA examiner’s statement that the Veteran has a current hearing loss present bilaterally. However, the regulatory definition of a hearing loss disability governs this case, and the audiometric results of the left ear do not satisfy the requirements of 38 C.F.R. § 3.385. The matter is REMANDED for the following actions: 1. Obtain the Veteran’s VA treatment records for the period from January 2019 to the present. 2. Ask the Veteran to complete a VA Form 21-4142 for Marshfield Clinic and any other private provider of audiograms. Make two requests for the authorized records from each provider, unless it is clear after the first request that a second request would be futile. If private audiograms are received, clarify that the Maryland CNC word list was used if the auditory thresholds for the left ear do not satisfy the requirements of 38 C.F.R. § 3.385 and the speech recognition score was less than 94 percent. 3. Readjudicate the claim, to include consideration of pertinent evidence received following the June 2016 Statement of the Case. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Ormson, 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.