Citation Nr: 21031490 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 17-46 540 DATE: May 24, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT Affording all reasonable doubt in the Veteran's favor, the evidence of record is in relative equipoise as to whether the Veteran's hearing loss disability is the result of active service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1131; 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 July 1965 to July 1967. This appeal is before the Board of Veterans' Appeals (Board) from a February 2014 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The procedural history of this case is as follows: In February 2014, the RO denied the Veteran's claim of entitlement to service connection for hearing loss. Further development followed, including August 2019 and January 2021 Board remands culminating in a February 2021 supplemental statement of the case denying the Veteran's claim. The Veteran's claim has returned to the Board and for the reasons described herein, the Board finds substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran seeks entitlement to service connection for hearing loss which he alleges is the result of in-service noise exposure. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Regarding service connection claims for hearing loss, this disability is defined by regulation. Specifically, under 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, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the above frequencies 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. Additionally, precedential case law provides that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Based on knowledge of service audiometric practice it is assumed that a veteran's service department audiometric tests prior to January 1, 1967 were in ASA units and require conversion to the currently used ISO units. The ASA units generally assigned lower numeric scores to hearing loss than do the ISO units, and conversion to ISO units is accomplished by adding 15 decibels to the ASA units at 500 Hertz, 10 decibels to the ASA units at 1000 Hertz, 2000 Hertz, and 3000 Hertz, and 5 decibels to the ASA units at 4000 Hertz. See VA Interim Issues 21-66-16, 21-66-17 (June 6, 1966); 10-66-20 (June 8, 1966); DM&S Manual M-2, Part XVIII, Chapter 4, paragraph 4.02, Use of International Standards Organization (ISO) for Audiological Examinations. In this case, given that the Veteran received audiograms prior to January 1, 1967 the Board will presume the ASA standard was used and the audiograms prior to January 1, 1967 will be converted to the currently used ISO units. For certain chronic diseases, such as hearing loss, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Turning to the evidence of record, the service treatment records (STRs) include an April 1965 pre-induction examination that included the following audiometric results: Hertz 500 1000 2000 3000 4000 Right -5 (10) -5 (5) 0 (10) - 5 (10) Left 0 (15) 5 (10) -10 (0) - 5 (15) In May 1967 he received a separation examination which included the following audiometric results: Hertz 500 1000 2000 3000 4000 Right -5 -5 0 0 15 Left 0 0 0 0 10 In a January 2014 statement to the Board, he alleged he has experienced hearing loss for "49 years" and that he saw "ear doctors" in Michigan "30+ years ago" and in California "20+ years ago" but could not remember the names of the doctors or the location of the offices. In February 2014, the Veteran underwent a VA hearing loss examination report which included a review of the claims file, a recitation of complaints and medical history, and included the following audiometric results: Hertz 500 1000 2000 3000 4000 Right 10 10 5 20 45 Left 20 10 15 45 65 A Maryland CNC test determined his right and left ear to be 96 percent each. Under the Veteran's noise exposure history, in the Remarks section, the report states, "Military Noise Exposure Hx: helicopter repair: unprotected. Occupational Noise Exposure Hx: insurance investigator, elderly nutrition for [location]: no loud noise. Recreational Noise Exposure Hx: target shooting (protected) racing, motorcycle (unprotected)." The examiner opined the Veteran's hearing loss was not the result of active service. In August 2019, the Board remanded the Veteran's claim for further development to include a VA addendum opinion as to the etiology of the Veteran's hearing loss. In January 2021 a VA medical opinion as to his hearing loss which included a review of the claims file and a recitation of complaints and medical history was entered into the claims file. The examiner noted he did not have a history of post-service occupational noise exposure but did have a "significant a hx of recreational noise exposure target shooting (protected) racing, motorcycle (unprotected)." The examiner conceded the Veteran experienced hazardous noise exposure in-service, but the evidence did not indicate he suffered a "noise injury." Ultimately the examiner opined it was less likely than not the Veteran's hearing loss was the result of active service, specifically opining: In civilian life the Veteran has 35+ years of a significant history of recreational/a vocational noise exposure. His exposure to hazardous noise in civilian life was far greater than his 2 years of hazardous noise in the military. Therefore, the nexus with military service was far less than a 50/50 probability relationship compared to his exposure to hazardous noise in civilian life. In December 2019, the Board granted service connection for tinnitus based on in-service noise exposure. In January 2021, the Board remanded the Veteran's claim for further development to include a VA addendum opinion that addressed the Veteran's lay evidence of hearing loss since active service and clarify the Veteran's post-service hazardous noise exposures. In February 2021, a VA addendum was added to the claims file. As to the Veteran's claim of hearing loss shortly after service, the opinion states: Based on the review of the STRs; there was no evidence of hearing damage at time of separation from the military... Based on the review of the VBMS records: No medical evidence that Veteran sought medical treatment for HL shortly after leaving the military or any time prior to 2014. Ultimately, the opinion determined: Veteran clearly stated that he had recreational noise exposure, he had acoustic trauma from target shooting, attending racing events, riding a motorcycle; all of these events produce noise levels capable of causing hearing loss. As with all recreational activities it occurs outside of the confines of work environment with no exposure time limitations . . . as opposed to the workday 8 hours five days a week. The assumption that recreational activities has the potential to occur throughout the person's lifetime as physically able and that amount of time in this case is longer than the two years of active service. It is an assumption on the part of the examiner that Veteran's recreational noise exposure is cause of current HL; because the consideration is; what is more likely to have occurred, how did Veteran's hearing get damaged if had no hearing loss at the time of separation. The fact that Veteran currently has HL is more likely than not (50 percent chance or greater) a result of his recreational noise exposure. Also, in February 2021, the Veteran submitted a statement to the Board stating he disagreed with the VA examiner stating, "I have never done any motorcycle racing in my life" and he only owned a motorcycle for 8 months when he was 26. After a review of the claims file in conjunction with the applicable laws and regulations, the Board finds the evidence of record is in relative equipoise as to whether the Veteran's bilateral hearing loss is the result of active service. The Board recognizes that the Veteran was diagnosed with bilateral hearing loss for VA ratings purposes under 38 C.F.R. § 3.385. Also, the Board concedes the Veteran suffered from in-service noise exposure that likely resulted in some acoustic trauma. Thus, the first and second elements of service connection are established. See Shedden, 381 F.3d at 1167. Here, as to a medical nexus, the Board acknowledges the February 2021 VA examiner determined it was less likely than not the Veteran's bilateral hearing loss was the result of active service. However, that opinion cited to the Veteran's post-service recreational noise exposure, including unprotected motorcycle racing, which the Veteran filed a statement disagreeing, stating, "I have never done any motorcycle racing in my life." See February 2021 Statement. Moreover, the examiner did not rationalize how the Veteran's in-service hazardous noise exposure and complaints of continued hearing loss since service did not result in a "noise injury" when he was previously found to have suffered a noise induced injury as a result of in-service exposure, which resulted in a grant of service connection for tinnitus based on such noise exposure. See December 2019 Board Decision. Furthermore, the Board accepts the Veteran's assertions in this regard to be credible and consistent with the circumstances of his service. See 38 U.S.C. § 1154; 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered on the basis of the places, types, and circumstances of his or her service, as shown by the evidence). As such, the February 2021 VA opinion is of limited probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. Consequently, given the Veteran's testimony and conceded in-service noise exposure in conjunction with an inadequate VA medical opinion of record, and upon resolution of all reasonable doubt to the Veteran, the Board determines that the evidence of record is in relative equipoise as to whether the Veteran's bilateral hearing loss is related to active duty service. As such, the benefit of the doubt rule applies. Id. at 58. Accordingly, the Veteran's claim of entitlement to service connection for bilateral hearing loss is granted. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Law Clerk, Tyler R. Masters 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.