Citation Nr: 21030071 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 15-39 475 DATE: May 17, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his bilateral hearing loss is at least as likely as not related to in-service injury, event, or disease. CONCLUSION OF LAW The criteria for service connection for a bilateral hearing loss disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1966 to July 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in June 2014 by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Board granted reopening of the claim for service connection for a bilateral hearing loss disability and remanded the issue. The Board again remanded the issue in April 2020. Entitlement to service connection for bilateral hearing loss is granted. The Veteran contends that his hearing loss is due to noise exposure in service. Specifically, the Veteran reported that he suffered daily and prolonged exposure to noise from jets, engines, and ground equipment. See January 2014 VA Form 21-4138. The Veteran also reported a specific incident of acoustic trauma during service where aircraft guns were erroneously discharged on the flight line about four feet away from him. See June 2014 notice of disagreement. The Veteran indicated that this acoustic trauma had long term implications for his hearing, as well as leading to the onset of his tinnitus. The Veteran and his spouse reported that the Veteran's diminished hearing had onset in service and has continued to deteriorate since that time. See October 2007 claim and statement. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases, to include sensorineural hearing loss, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). 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 following frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at the above thresholds 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. In this case, service treatment records are silent for complaints, treatment, or diagnosis of hearing loss. Although an August 1966 hearing conversation record noted noise exposure from aircraft engine without ear protection, the audiological evaluation noted normal hearing. Similarly, the Veteran's May 1970 audiological evaluation at separation noted hearing which was normal for VA purposes. In the related May 1970 report of medical history, the Veteran denied hearing loss. Post-service, the Veteran was noted to have hearing loss in a September 2007 private audiogram. See also January 2012 VA treatment records. At that time, the Veteran was noted to have normal middle ear pressure and compliance bilaterally. The Veteran's ipsilateral reflexes were present, and contralateral stapedial reflexes were present when stimulating the left ear and only present at 2000 Hertz when stimulating the right ear. A January 2020 VA examination report shows a current hearing loss disability for VA compensation purposes. Given the current diagnosis established in post-service treatment records, the question becomes whether the Veteran's hearing loss disability is related to service. On this question there are probative opinions in favor of and against the claim. Of note, the Veteran was afforded an April 2008 VA examination. The examiner opined that there was no nexus between the Veteran's current hearing loss to military service, without seeing the Veteran's service audiometric records. In a June 2008 addendum opinion the examiner offered a negative opinion, noting that there was no evidence that hearing loss was a result of in-service noise exposure. In an April 2019 remand, the Board noted that the April 2008 and June 2008 VA opinions did not provide adequate rationales as they failed to take into consideration the Veteran's specific account of noise exposure in service. VA obtained an addendum opinion in January 2020. The examiner provided a negative etiology opinion, citing the Veteran's entrance audiogram, his separation examination, and the May 1970 audiogram. The opinion also noted, incorrectly, that the Veteran had normal hearing in the June 2008 VA examination. The examiner indicated that the Veteran's right hearing loss appears to have a conductive component. In April 2020, the Board remanded the appeal noting that the prior VA examiner provided no explanation as to why normal hearing on the separation examination and in post-service testing supports the negative etiology opinion. Most recently, an addendum opinion was obtained in April 2020. This opinion included conversion of the in-service audiograms from ASA to ISO-ANSI. The examiner opined that the Veteran had normal hearing at separation including in frequencies most sensitive to acoustic trauma. Further, the examiner cited medical literature which found that the most profound auditory effects of noise exposure occur immediately following exposure. Thus, if the Veteran's hearing loss was caused by military noise exposure, such hearing loss would have been shown at separation. In April 2020, in support of his claim, the Veteran submitted a November 2019 opinion by a private audiologist, Dr. Jacobster. The clinician examined the Veteran and reviewed his medical history, including in-service events. The Veteran reported that his hearing difficulties started while he was in the service. Upon examination, Dr. Jacobster noted a diagnosis of sensorineural hearing loss. Further, the clinician noted normal middle ear function, and excessive scar tissue in the right ear most likely from a traumatic injury. Dr. Jacobster opined that the Veteran's current hearing loss is likely the direct result of his exposure to noise during service. In support of that opinion, the clinician reasoned that the empirical data and medical evidence shows that blast injuries can cause the type of hearing loss affecting the Veteran. Further, he had such in-service noise trauma. Moreover, the clinician indicated that the Veteran's report of worsening hearing loss cannot be used to rule out noise induced hearing loss because perceptions of hearing loss is multifactorial and not determinative of the type or cause of hearing loss. Finally, the clinician indicated that attributing the Veteran's hearing loss to ossicular fixation, as noted in the April 2008 VA opinion, is contradicted by the current physical findings and the findings from the September 2007 VA treatment records. Ultimately, Dr. Jacobster concluded that the etiology for the Veteran's hearing loss is most plausibly the noise exposure and acoustic trauma in service. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current hearing loss is related to service. The evidence in favor of the claim includes the Veteran's competent report of acoustic trauma and noise exposure in service. Further, the Board finds the November 2019 private opinion competent and probative on the matter. The opinion was thorough and supported by a cogent rationale. Although the November 2019 opinion did not discuss the separation examination, the clinician indicated that she had reviewed the history of the Veteran's service. The Board notes that there are also probative opinions of record against the claim, including the April 2020 VA opinion. Nonetheless, the Board cannot find that this opinion more probative than the November 2019 private opinion given that both opinions are authored by competent medical professions and supported by adequate rationale. In sum, the Veteran has a current disability of bilateral hearing loss. As to the etiology of the hearing loss, there is equally probative evidence weighing against and for the claim. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for hearing loss is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Vuong, 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.