Citation Nr: 21031593 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 20-16 845 DATE: May 24, 2021 ORDER Service connection for bilateral hearing loss disability is granted. FINDINGS OF FACT 1. The Veteran has current bilateral ear hearing loss disability for VA compensation purposes. 2. The Veteran's bilateral hearing loss disability is the result of in-service hazardous noise exposure from the engines of ship and submarines as part of his military occupational specialty (MOS) duties as an engineman while serving with the U.S. Navy from 1963 to 1967. 3. The Veteran is already service connected for tinnitus due to the same in-service hazardous noise exposure. CONCLUSIONS OF LAW Resolving all reasonable doubt in his favor, the criteria for service connection for bilateral hearing loss disability have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1154(a), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the U.S. Navy from May 1963 to April 1967. This appeal has been advanced on the Board's docket. 38 U.S.C. § 7107(b) (effective February 19, 2019); 38 C.F.R. § 20.800(c) (2020). This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a July 2016 rating decision issued by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). I. VA's Duty to Notify and Assist VA's duty to notify under the Veterans Claims Assistance Act of 2000 (VCAA) was satisfied in the present case. See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159 (2020). Specifically, the Veteran was provided with a VCAA notice attachment that was included with his February 2016 Application for Compensation (VA Form 21-526EZ). This attachment advised the Veteran of the information and evidence necessary to substantiate his service connection claim for hearing loss. In any event, in the decision below, the Board has granted the Veteran's claim for service connection for bilateral hearing loss disability. Therefore, the benefits sought on appeal have been granted in full for this particular issue. Accordingly, regardless of whether the notice and assistance requirements have been met, no harm or prejudice to the Veteran has resulted for this particular issue. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. II. Service Connection for Bilateral Hearing Loss 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) the existence of 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 disease or injury incurred or aggravated during service the "nexus" requirement. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). But according to VA standards, impaired hearing will only be considered 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 these 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. In the present case, the Veteran's sensorineural hearing loss (an "organic disease of the nervous system") is considered by VA to be a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). Under 38 C.F.R. § 3.303(b), where the evidence shows an enumerated "chronic disease" in service (or within the presumptive period under § 3.307), or "continuity of symptoms" of such a disease after service, the disease shall be presumed to have been incurred in service. Walker, 708 F.3d 1335-1337. Service connection for certain enumerated diseases, such as sensorineural hearing loss (organic disease of the nervous system), may be also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). VA is to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Thus, there is no categorical rule that medical evidence is required when the determinative issue is either medical etiology or a medical nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board should make explicit findings regarding the competency and, if necessary, the credibility of the lay evidence of record. Miller v Wilkie, 32 Vet. App. 249, 257-262 (2020). Lay testimony is competent to describe the presence of readily observable features or symptoms of injury or illness that are not medical in nature, such as varicose veins, tinnitus, and flat feet. See 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303, 307-310 (2007). The Federal Circuit has also clarified that lay evidence can be competent for the medical diagnosis or etiology of a condition if: (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). And if the disability is of the type for which lay evidence is competent, the Board must weigh the probative value of that lay evidence against other evidence of record in making its determination regarding the award of service connection. Buchanan v. Nicholson, 451 F.3d 1331, 1334-37 (Fed. Cir. 2006). In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). The Veteran has contended that he had hazardous noise exposure during his service in the U.S. Navy from 1963 to 1967 from his duties of his military occupational specialty (MOS) as an engineman. His DD Form 214 and service personnel records (SPRs) confirm that he served in this capacity. Specifically, he has maintained that he experienced the hazardous noise exposure from performing maintenance and repairs on diesel and gas engines of ships and nuclear submarines. His exposure to engine noise was constant and on a daily basis. In the 1960s, the Navy had not yet implemented modern hearing conservation programs to protect his hearing. As a result, the onset of the Veteran's bilateral hearing loss occurred gradually over time post-service, although not during or immediately after service. Post-service, as a civilian, he has consistently denied any work-related or recreational noise exposure from 1967 to the present. He has added that although his speech discrimination scores were normal, this does not mean he can hear properly in real life situations. See February 2016 Application for Compensation (VA Form 21-526EZ); February 2016 informal claim for service connection for hearing loss; February 2016 email from spouse; June 2017 NOD (VA Form 21-0958); March 2020 VA Form 9; and May 2021 Brief Presentation from the American Legion. At the outset, the AOJ in a recent February 2020 rating decision already granted the Veteran service connection for tinnitus. This award was based on the same in-service hazardous noise exposure discussed above. Upon review of the evidence of record, the Board grants the appeal for service connection for bilateral hearing loss disability. The award of service connection is based on the following assessments: First, there is sufficient proof of a current disability for bilateral hearing loss. See 38 U.S.C. § 1110; Degmetich v. Brown, 104 F.3d 1328, 1332 (1997). In fact, in Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007), the Court specifically upheld the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes. Specifically, a June 2017 private audiogram from a hearing aid specialist revealed moderate to severe bilateral mixed sloping hearing loss disability according to the clear, established requirements of 38 C.F.R. § 3.385. It is noted that the Veteran's speech discrimination scores were assessed as "good" by the private examiner. Regardless, right ear hearing loss disability for VA purposes was established by way of pure tone thresholds of 40 decibels or greater at the frequencies of 2000Hz, 3000Hz, and 4000Hz. Left ear hearing loss disability for VA purposes was established by way of pure tone thresholds of 26 decibels or greater for at least three frequencies (***in this Veteran's case at least 30 decibels was elicited at all five frequencies). In making this determination, the Board acknowledges that this June 2017 private audiology evaluation was provided in graphic representations without interpretation as to the exact puretone thresholds found. However, it is apparent from a close review of the June 2017 private audiogram that pure tone threshold results were at least 30 decibels or higher at nearly every frequency. See Kelly v. Brown, 7 Vet. App. 471 (1995) (the Board should not discount audiograms just because they are in graphical form). Thus, the existence of a current disability for VA purposes is established for bilateral ear hearing loss based on the findings of the June 2017 private audiogram from a hearing aid specialist. On a side note, with regard to the existence of current hearing loss disability for VA compensation purposes under 38 C.F.R. § 3.385 for this Veteran, the Board acknowledges that the June 2016 and February 2020 VA audiology examiners did not establish hearing loss disability in either ear for VA purposes. However, the pure tone threshold and speech discrimination score findings at these VA audiology examinations were quite close to meeting the requirements listed under 38 C.F.R. § 3.385 for bilateral hearing loss disability. The Board has considered that different audiology examiners rarely produce the exact same findings. Moreover, the VA benefits system does not favor the opinion of a VA examiner over a private examiner, or vice versa. See 38 U.S.C. § 5125; White v. Principi, 243 F.3d 1378, 1381 (Fed. Cir. 2001) (declining to adopt the treating physician rule for adjudicating VA benefits). Second, as to an in-service injury, the Department of Defense's Duty MOS Noise Exposure Listing indicates that the Veteran's in-service MOS as an "engineman" in the Navy involved a "high" probability of noise exposure during service. This would include exposure to daily engine noise from ships and submarines. On this basis, there is a qualifying event, injury, or disease that had its onset during the Veteran's service. Therefore, hazardous noise exposure during his period of active duty from 1963 to 1967 is consistent with the circumstances of the Veteran's duties in the Navy. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). Third, as to the second requirement of in-service incurrence, service treatment records (STRs) dated from 1963 to 1967 during the Veteran's service in the Navy are negative for any complaint, treatment, or diagnosis of bilateral hearing loss disability under § 3.385. Also, the Veteran's STRs also fail to reveal any significant auditory shifts in the frequencies of 500 to 4000 Hertz. His only in-service audiogram however was at enlistment in 1963. In any event, all other STRs failed to demonstrate any bilateral hearing loss disability under § 3.385. At his March 1967 STR separation examination, the Veteran's hearing was normal (15/15) according to whispered-voice tests. However, these whispered voice tests are entitled to limited probative value as they involve no audiometric testing with pure tone thresholds. A more scientific and accurate International Standards Organization (ISO) audiometric test, which is utilized in current times, was not utilized in the Veteran's STRs. Regardless, the Board emphasizes that to establish service connection, it is not required that a hearing loss disability by the standards of 38 C.F.R. § 3.385 be demonstrated during service, although a hearing loss disability by the standards of 38 C.F.R. § 3.385 must be currently present, and service connection is possible if such current hearing loss disability can be adequately linked to service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). That is, a claimant may establish direct service connection for a hearing disability initially manifest several years after separation from service on the basis of evidence showing that the current hearing loss is causally related to injury or disease suffered in service. Hensley v. Brown, 5 Vet. App. 155, 164 (1993). See also 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). Therefore, the lack of evidence of bilateral hearing loss disability per § 3.385 or any hearing loss complaints during active service or within one year of service is not fatal to the Veteran's claim; rather, it is merely one factor to be considered. Fourth, post-service, it is significant to the Board's present adjudication of bilateral hearing loss that the AOJ in a February 2020 rating decision already granted the Veteran service connection for tinnitus. This award was based on the same confirmed in-service hazardous noise exposure for the Veteran as an engineman in the Navy from 1963 to 1967. Fifth, with regard to a nexus, there is probative medical evidence of record establishing a link between the Veteran's current bilateral hearing loss disability and his confirmed hazardous noise exposure during his period of active service in the Navy from 1963 to 1967. Holton, 557 F.3d at 1366. See also 38 C.F.R. § 3.303(a), (d). In particular, the Board has reviewed the findings of a June 2017 ear conditions DBQ (VA Form 21-0960N-1) from a private hearing aid specialist, the June 2016 VA audiology examination, and the February 2020 VA audiology examination. All three examiners unanimously opined that the Veteran's bilateral hearing loss and tinnitus developed as the result of the acoustic trauma and hazardous noise exposure he experienced from 1963 to 1967 as an engine mechanic in the Navy. In addition, the Veteran's representative discussed favorable medical treatise evidence. According to the National Institutes of Health, National Institute on Deafness and Other Communication Disorders (NIDCD), noise-induced hearing loss (NIHL) can be immediate or it can take a long time to be noticeable. The representative also cited to a May 2015 Journal of Neuroscience article. This article indicated that initially reversible noise damage can have dramatic long-term consequences in amplifying age-related sensorineural hearing loss - of great significance in the consideration of noise-risk assessments. See http://www.jneurosci.org/content/jneuro/35/19/7509.full.pdf. On this point, medical treatise evidence can provide important support when combined with an opinion of a medical professional. Mattern v. West, 12 Vet. App. 222, 228 (1999). Therefore, the requirement of a nexus is met. Notably, there was no contrary, unfavorable medical opinion of record. Sixth, after the Veteran's separation from service in 1967, there was no demonstrable hazardous noise exposure identified post-service by any intercurrent recreational and occupational activities in the years from 1967 to 2021. See 38 C.F.R. § 3.303(b). Accordingly, resolving doubt in the Veteran's favor, service connection for bilateral hearing loss disability is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.S. Rubin, 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.