Citation Nr: 21030941 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 15-25 722 DATE: May 20, 2021 ORDER Entitlement to service connection for a bilateral hearing loss disability is granted. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, his bilateral hearing loss is etiologically related to his active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a bilateral hearing loss disability have been met. 38 U.S.C. §§ 1101, 1112, 1131, 1137 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1967 to July 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The appeal was last remanded by the Board in April 2019 for additional development. The Board notes that on remand, the RO granted entitlement to service connection for bilateral tinnitus in an August 2020 rating decision; therefore, that claim is no longer on appeal. A review of the claims file shows that there has been substantial compliance with the Board's prior remand directives and thus, no further action in this regard is warranted. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for bilateral hearing loss The Veteran contends that his in-service noise exposure caused his bilateral hearing loss disability. He alleges that his noise exposure included noise caused by helicopters and artillery fire, which was heightened due to him being the "base piece". See November 2012 VA Form 21-526, April 2014 notice of disagreement, and June 2015 VA Form 9. He also asserts that he did not have any post-service occupational noise exposure. See April 2014 notice of disagreement and June 2015 VA Form 9. The Veteran further contends that he has collapsed ear canals due to his active duty service but that such was not noted on the VA examiner's report. See April 2014 notice of disagreement. Lastly, the Veteran asserted in his June 2015 VA Form 9 that if any artillery crew member has ever been awarded service connection for hearing loss, such award supports his claim. The Veteran had a pre-induction audiological evaluation in September 1967 which specified that American Standards Association (ASA) units were used. The Veteran had another audiological evaluation at separation in July 1969 which did not specify whether ASA or International Standards Organization American National Standards Institute (ISO-ANSI) units were used. Because it is unclear what units were used for the July 1969 in-service audiological examination, the Board will consider the recorded metrics under both standards, relying on the unit measurements most favorable to the Veteran's appeal. As it relates to VA examinations and VA records, audiological reports were routinely converted from ISO-ANSI results to ASA units until the end of 1975 because the regulatory standard for evaluating hearing loss was not changed to require ISO-ANSI units until September 9, 1975. In light of the above, and where necessary to facilitate data comparison for VA purposes in the decision below, including under 38 C.F.R. § 3.385, audiometric data originally recorded using ASA standards will be converted to ISO-ANSI standards by adding between 5 and 15 decibels to the recorded data as follows: Hertz 500 (+15); 1000 (+10); 2000 (+10); 3000 (+10); 4000 (+5) The Veteran's September 1967 pre-induction report of medical examination indicated that the Veteran's ears and drums were normal. The Veteran's pre-induction audiogram results using ASA units were as follows: For the 500, 1000, 2000, 3000, and 4000 Hertz ranges, the decibel loss in the right ear was, respectively, 10, 5, -5, -5, and -5. Decibel loss in the left ear was, respectively, 15, 10, 10, 10, and 5. Using the ISO-ANSI conversion, the decibel loss in the right ear was, respectively, 25, 15, 5, 5, and 0. Decibel loss in the left ear was, respectively, 30, 20, 20, 20, and 10. A July 1969 report of medical history made at the time of separation from service noted that the Veteran did not have hearing loss. A contemporaneous separation examination again noted that the Veteran's ears and drums were normal. The Veteran's separation audiogram results were as follows: In ASA units, for the 500, 1000, 2000, 3000, and 4000 Hertz ranges, the decibel loss in the right ear was, respectively, 10, 5, 0, and 15. Decibel loss in the left ear was, respectively, 5, 5, 5, and 25. Using the ISO-ANSI conversion, the decibel loss in the right ear was, respectively, 25, 15, 10, and 20. Decibel loss in the left ear was, respectively, 20, 15, 15, and 30. In November 2012, D.S. submitted a statement in support of the Veteran's claim for bilateral hearing loss. D.S. explained that she had known the Veteran since 1966 and that his hearing seemed normal prior to being deployed to Vietnam. However, D.S. stated that after returning from Vietnam the Veteran seemed to have trouble hearing conversations in a crowd or when there was background noise. She asserted that the Veteran's hearing loss was more noticeable as time passed. In November 2012, D.M. also submitted a statement in support of the Veteran's claim for bilateral hearing loss. D.M. stated that he knew the Veteran prior to entry into active duty service. D.M. explained that he noticed that the Veteran's hearing was not nearly as good after the Veteran separated from the military. He stated, "[a]s the years passed by, it became very evident that [the Veteran] was suffering from hearing loss." The Veteran was afforded a VA examination for his hearing loss claim in March 2013. An audiogram was conducted which revealed the following results: For the 500, 1000, 2000, 3000, and 4000 Hertz ranges, the decibel loss in the right ear was, respectively, 10, 10, 5, 15, and 40; and in the left ear was 10, 15, 10, 15, and 45. The pure tone test results were deemed valid for rating purposes. Speech discrimination scores using the Maryland CNC word list were 94 percent for the right ear and 100 percent for the left ear. The VA examiner provided a negative nexus opinion and explained that service treatment records showed normal hearing throughout service with no significant pure tone threshold shifts. The examiner also noted that the Veteran had 24 years of combined post-military occupational noise exposure as a meat cutter for 14 years and then as an aircraft inspector at an air force base for 10 years. The Veteran submitted private audiological test results dated January 2014. A private audiogram noted the following results for the 500, 1000, 2000, 3000, and 4000 Hertz ranges in the right ear, respectively: 10, 15, 15, 10, 60. For the left ear, respectively: 15, 15, 20, 15, and 65. Speech discrimination scores were available but did not indicate whether the Maryland CNC word list was utilized. The January 2014 private record did not include an etiology opinion. The Veteran submitted medical articles in support of his claim in April 2014 and July 2014. These articles addressed noise levels emanated from military weapons and the increased risk for hearing loss amongst veterans. The Veteran was afforded another VA examination in July 2020. The July 2020 VA examiner's report noted that the Veteran's military occupational specialty as a cannon crewmember carried a high probability for hazardous noise exposure. The VA examiner determined that the Veteran did have significant threshold shifts in hearing between entry and separation from active duty service that were at least as likely as not caused by his in-service noise exposure. However, the VA examiner also noted that the Veteran did not have hearing loss arising to the level of a disability for VA purposes during or at separation from active duty service. The VA examiner determined that "[t]he claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness." The VA examiner cited to a 2005 Institute of Medicine treatise that found that the most profound auditory effects of noise exposure occurred immediately following exposure. The VA examiner concluded that if the Veteran's service caused hearing loss arising to the level of a disability for VA purposes, the hearing loss disability would have been present at separation. A VA addendum opinion was obtained in August 2020. The VA examiner clarified that audiometric results at separation did not meet diagnostic criteria for a hearing loss disability for VA purposes. The VA examiner again provided a negative nexus opinion and again cited to the 2005 the Institute of Medicine treatise. The VA examiner again explained that if the Veteran's in-service noise exposure caused hearing loss arising to the level of a disability for VA purposes, hearing loss arising to that level would have been present at separation. However, the Veteran did not have hearing loss arising to the level of a disability for VA purposes at separation from active duty service. The Board finds that service connection for a bilateral hearing loss disability is warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection generally requires evidence satisfying three criteria: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the current disability and the disease or injury incurred or aggravated during service. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). 38 C.F.R. § 3.385 outlines the requirements that a Veteran must meet to be diagnosed with a hearing loss disability for VA purposes and states: 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, 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. Sensorineural hearing loss is also a condition of the organic nervous system which is an enumerated condition under 38 C.F.R. § 3.309(a) and for which presumptive service connection is for consideration. Walker, 708 F.3d 1331. The Board finds that the preponderance of the evidence weighs if favor of an award of service connection for bilateral hearing loss. (Continued on the next page) During the period on appeal the Veteran demonstrated hearing loss arising to the level of a disability for VA purposes. The Board finds the Veteran's lay statements concerning his in-service noise exposure credible and concedes that the Veteran's military occupational specialty had a high probability for noise exposure. The Board also finds the Veteran's assertion that he did not have any significant post-service occupational noise exposure to be credible. Moreover, the Veteran's service treatment records indicate the Veteran experienced a threshold shift in hearing from entrance to separation from active duty service. The July 2020 and August 2020 VA opinions even acknowledged the threshold shift in hearing during service and that the Veteran had a current hearing loss disability for VA purposes. The Board finds that the Veteran's in-service noise exposure caused a threshold shift in hearing between entrance and separation from active duty service which is etiologically related to his current hearing loss disability. Accordingly, entitlement to service connection for a bilateral hearing loss disability is granted. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Palombi 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.