Citation Nr: 21028340 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-41 225 DATE: May 11, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, the Veteran's bilateral hearing loss was caused by active service and has been continuous since separation from service. CONCLUSION OF LAW The criteria to establish service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1974 to December 1975. This matter originally comes before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newnan, Georgia. In June 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding has been associated with the electronic record. This matter was remanded by the Board in November 2019, April 2020, and January 2021 for additional evidentiary development. As the Board observes that there has now been substantial compliance with its remand directives, the Board is can proceed with disposition of the appeal. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. (2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). Service connection may also be granted through the application of statutory presumptions for chronic conditions, which includes sensorineural hearing loss. See 38 C.F.R. §§ 3.303(b), 3.309(a) (2017); see also 38 U.S.C. §§ 1112, 1137 (2012). First, a claimant may benefit from a presumption of service connection where a chronic disease has been shown during service. 38 C.F.R. § 3.303(b). In the alternative, if a chronic disease was not shown in service, but manifested to a degree of 10 percent or more within a year or other specified time after separation from active service, such disease shall be presumed to have been incurred or aggravated in service, even if there is no evidence of such disease during service. 38 U.S.C. §§ 1112, 1137 (2012); 38 C.F.R. § 3.307(a)(3) (2017). The application of these presumptions operates to satisfy the "in-service incurrence or aggravation" element and establish a nexus between service and a present disability, which must be found before entitlement to service connection can be granted. Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been "shown in service," there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in-service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence considering the entirety of the record. The standard of proof to be applied in decisions on claims for veterans' benefits is outlined in 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to service connection for bilateral hearing loss The Veteran contends that his bilateral hearing loss was caused by noise exposure during active duty service. After review and consideration of the competent lay and medical evidence of record, the Board agrees. The threshold for normal hearing is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Impaired hearing is considered a disability for VA compensation purposes when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The provisions of 38 C.F.R. § 3.385 do not preclude service connection for a current hearing disability even where hearing was within normal limits on audiometric testing at separation from service. Hensley, 5 Vet. App. at 157. A veteran may establish the required nexus between current hearing loss disability and service if he or she can show by competent evidence that hearing loss resulted from the in-service acoustic trauma even where the hearing loss disability does not arise in service. Godfrey v. Derwinski, 2 Vet. App. 352 (1992). In a May 2015 VA audiological examination report, the several pure tone thresholds for each ear were 26 decibels or greater and there was speech recognition scores of 86 percent in the left ear. As such, the Veteran has a current bilateral hearing loss disability for VA compensation purposes. Service treatment records reflect that in May 1975, the Veteran was seen in the Army clinic complaining of a two-week history of ear pain and decreased hearing. The right ear tympanic membrane was red with decreased light reflex and the left ear had purulent material in the ear canal. The Veteran was diagnosed with otitis media and otitis externa. Upon his separation report of medical history in December 1975 the Veteran denied ever having had ear, nose, or throat trouble. Clinical examination of his ears was normal. Audiometry pure tone thresholds at separation were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 0 na 0 LEFT 0 0 0 na 0 Accordingly, the service treatment records reflect an instance of decreased hearing although his hearing thresholds were reported as normal upon induction and at separation. However, the RO has conceded acoustic trauma given that the Veteran's DD 214 reflects that his military occupational specialty (MOS) of Tactical Wire Operation Specialist/Field Wireman which the Department of Defense has determined is associated with a high probability of hazardous noise exposure. The Veteran is service-connected for tinnitus as a result of this noise exposure. In addition, the Veteran testified regarding qualifying for his rifle badge on the shooting range without benefit of hearing protection. Thus, the second required element for service connection of an inservice incurrence is satisfied. The third element of service connection requires medical evidence of a nexus, or link, between the current disability and the in-service disease or injury. In the Veteran's September 2015 VA hearing examinations, the Veteran reported difficulties with work due to difficulties understanding general conversation, with background noise or in groups. The Veterans pure tone threshold in September 2015 were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 30 45 45 40 LEFT 5 15 50 60 55 In 2019 the Veteran appeared and testified at a Board hearing regarding his hearing loss. He reported that he was exposed to noise while preparing for his rifle badge without the benefit of hearing protection while standing next to an M16 machine gun and from the airplanes and helicopters that he was around for jump school. He stated that he was provided roll-up ear plugs when he was on the firing line, but they tended to fall out. He reported that his hearing loss and tinnitus began "soon after he got out." And that he began noticing problems with his hearing while he was working as a press operator in 1982. He stated that he had hearing tests during employment and that hearing loss was identified at that time. He reported that he was employed as a sheer operator, press operator, steel hauler for the railroad after service. He wore hearing protection during all of the after-service positions mentioned. During a May 2020 VA disability hearing examination, the Veterans pure tone thresholds in May 2020 were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 30 40 50 40 LEFT 10 20 55 60 55 The examiner concluded that it is less likely than not that the claimant's hearing loss was caused by or a result of military noise exposure. As rationale, the examiner noted normal hearing at separation examination, most notably in the mid to high frequencies, which are known to be particularly sensitive to acoustic trauma relied upon a 2005 Institute of Medicine report that found that the most profound auditory effects of noise exposure occur immediately. This suggests that, if caused by military noise exposure, hearing loss and/or threshold shifts with an onset during service would be present at separation. After Board remand in January 2021, a VA disability medical opinion was provided based upon review of all available records. The examiner noted that the Veteran's DD 214 reflects a MOS associated with a probability of hazardous noise exposure. However, the examiner stated that his military service records provided no substantive evidence that hearing loss or tinnitus occurred during service. The record shows no complaint of hearing loss during service. There is no evidence documented within STR's of an in-service injury, event, or disease, including in-service acoustic trauma. When comparing military audiological examinations from induction to separation there are no significant threshold shifts evident. The examiner concluded that based on the lack of evidence in the STRs of hearing loss, it is less likely than not that the Veteran's hearing disability had its onset in service. In April 2021, counsel for the Veteran submitted summaries and references to two articles supporting delayed hearing loss. Adding Insult to Injury: Cochlear Nerve Degeneration after 'Temporary' Noise-Induced Hearing Loss, Sharon G. Kujawa, M.C. Liberman, J. Neuroscience, 29(45) (2009) indicates that despite a temporary return to normal hearing measurements after noise exposure, there is primary degeneration of cochlear neurons after noise exposure that may mask hearing degeneration that occurs years later. The same authors published Synaptopathy in the Noise-Exposed and Aging Cochlea: Primary Neural Degeneration in Acquired Sensorineural Hearing Loss, Hearing Research 330(13); 191-199 (2015) which discussed emerging research on hidden hearing loss that indicates that full hearing threshold recovery does not equal full cochlear recovery. The Board remanded the claim twice after the initial 2015 VA audiological examination highlighting the need for the examiners to consider all evidence including the Veteran's lay statements regarding hazardous noise exposure in service. Each of the three examiners specifically point to a lack of evidence of hearing loss in the STRs to support a negative nexus opinion; however, each examiner overlooked the Veteran's clinic note in which he complained of hearing loss. The Board further observes that the examiners did not discuss the reliability of the Veteran's thresholds reported as "0" at all Hz in both ears at separation, while on induction he had multiple thresholds in both ears that were 20, a high threshold that is at the top of range of normal hearing. The second VA examiner attributed the Veteran's hearing loss to his post service employment, although the Veteran testified regarding hearing conservation efforts in this post service employment including hearing protection and audiologic testing as compared to unreliable, if any, hearing protection in service. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file). Further, although the last examiner acknowledged the association with noise hazards with the Veteran's MOS, there was no discussion of the Veteran's individual experience portrayed in his treatment records, lay statements and testimony, including the type of hearing protection that occurred in service. Accordingly, the Board has assigned reduced probative value of the opinions of the VA examiners in view of these factors. On the other hand, the Board observes that the Veteran is competent to testify regarding his inservice experience and his observable symptomology including his awareness of decreased hearing acuity. See Washington v. Nicholson, 19 Vet. App. 362 (2005). There is documentation of an instance of hearing loss in service, the Veteran's credible testimony of his perception of continuous decreased hearing once leaving service and then noticing problems with his hearing six years after he left service in 1982. This is bolstered by authoritative medical evidence that return to normal hearing thresholds after hazardous noise exposure does not exclude progressive cochlear damage causing delayed hearing loss. Further, the provisions of 38 C.F.R. § 3.385 do not preclude service connection for a current hearing disability even where hearing was within normal limits on audiometric testing at separation from service. See Hensley, 5 Vet. App. at 157. Accordingly, upon review of all the evidence of record, lay and medical, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran's diagnosed hearing loss first manifested in service. Resolving any reasonable doubt in the Veteran's favor, the Board finds that service connection for bilateral hearing loss is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Adams Hill, 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.