Citation Nr: 21032223 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 15-35 182 DATE: May 26, 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, the evidence shows bilateral hearing loss disability that is related to in-service acoustic trauma. CONCLUSION OF LAW The criteria for entitlement to service connection for a bilateral hearing loss disability are met. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from October 1973 to June 1977. This matter was previously before the Board of Veterans' Appeals (Board) in March 2019 and October 2020. In its October 2020 remand directives, the Board instructed the Agency of Original Jurisdiction (AOJ) to obtain an addendum opinion that reconciles the December 2018 and March 2020 conflicting medical opinions. The matter has been returned to the Board for an appellate review. Entitlement to service connection for a bilateral hearing loss disability The Veteran asserts that his bilateral hearing loss disability is related to his duty assignments in an engine room aboard the ship he was stationed on while serving active duty. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent medical or lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a relationship between the claimed in service disease or injury and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Certain chronic diseases, including sensorineural hearing loss, as organic diseases of the nervous system, may be presumed to have been incurred or aggravated during service if it becomes disabling to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Fountain v. McDonald, 27 Vet. App. 258 (2015). A veteran may establish the required nexus between his current hearing loss disability and his term of active service if he can show that his hearing loss disability resulted from acoustic trauma in service. Godfrey v. Derwinski, 2 Vet. App. 352 (1992). 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, or 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; Hensley v. Brown, 5 Vet. App. 155 (1993). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Regarding the first requirement of service connection, the Board finds that the Veteran has a current disability of bilateral sensorineural hearing loss. A March 2020 VA examination report shows that the Veteran has a bilateral hearing loss disability for VA compensation purposes. See 38 C.F.R. § 3.385. On the objective audiological evaluation, speech discrimination test revealed a speech recognition ability of 88 percent in the right ear and 96 percent in the left ear. The Veteran's puretone thresholds, in decibels, were as follows: Frequency 500 Hz 1000Hz 2000Hz 3000Hz 4000Hz Average Right ear 25 30 45 65 70 52 Left ear 20 20 20 35 50 31 The November 2014 and June 2017 VA examination reports also show a diagnosis of bilateral sensorineural hearing loss. Therefore, the first requirement of a service connection claim is satisfied. Second, regarding an in-service event or injury, the Board finds that the Veteran had in-service loud noise exposure. The record shows the Veteran's military occupational specialty (MOS) as boiler technician, which is associated with a high probability of hazardous noise exposure. Therefore, the second element necessary for a service connection claim is met. With regard to the third requirement (nexus) of a service connection claim, the Board finds the evidence to be in relative equipoise as to whether the Veteran's bilateral hearing loss began during active service or was otherwise caused by his service. The Veteran was afforded a VA examination in November 2014. The examiner opined that it is less likely than not that the Veteran's hearing loss was due to military noise exposure. The examiner's rationale was that multiple in-service hearing screenings showed no hearing loss in either ear, and that there were no shift in hearing at any frequency during service. See November 2014 VA Examination. In March 2015, the Veteran submitted an article titled "Disease and Injury in the US Navy Engineering Occupations". The article stated that disorders for which boiler technicians were statistically significantly well above the Navy norm included mental disorders (35 percent) and nervous system disorder (45 percent higher). The article further indicated that Navy engineers often work under adverse conditions of hot, dirty, and noisy environment. See Third Party Correspondence. The Veteran was afforded a VA examination in June 2017. The examiner opined that the Veteran's hearing loss is less likely as not (less than 50 percent probability) caused by or a result of an event in military service. The examiner's rationale was that the Veteran's separation exam in May 1977 showed normal hearing with no significant changes in thresholds compared to his enlistment exam in 1973, and that there were no complaints of hearing loss in military treatment records. The examiner also noted that a hearing exam completed at Syracuse VAMC in 1978 showed normal hearing and that the first documented evidence of hearing loss was in 2014, approximately 37 years after military separation. Citing the Institute of Medicine (2006) and the IOM panel, the examiner remarked that there was insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure. The examiner attributed the Veteran's bilateral hearing loss to post-military occupational noise hazards. See June 2017 C&P Examination. At the November 2018 Board hearing, the Veteran testified that he had experienced hearing loss since the 1970's when he initially filed a claim for a hearing loss disability; and that his symptoms have progressively worsened. The Veteran stated that as a boiler technician, he worked in close proximity to high pressure boilers and steam turbines for three and half years, in the bottom of a destroyer. See November 2018 Hearing Transcript. The Veteran underwent a private in-person audiological examination in December 2018. The examiner proffered the following opinion and rationale: "Veteran reports that he worked in a boiler room during his service and that a steam turbine was positioned by his right ear. It is at least as likely as not that the excess noise exposure of the boiler room would precipitate a bilateral sensorineural hearing loss and the proximity of the right ear to the turbine correlates with the right ear being poorer. Veteran worked as a truck driver for about six years after service. In this case, the left ear is more proximal to the noise exposure." See December 2018 Medical Treatment Record - Non-Government Facility. The Veteran was afforded a VA examination in March 2020. The examiner opined that it is less likely than not that the Veteran's hearing loss is due to military noise exposure. The examiner's rationale was that the Veteran's hearing was found to be normal upon entrance into the service. His hearing was also found to be normal throughout his time in the service, upon discharge from service and a year thereafter on June 22, 1978. The examiner concluded that all of this evidence combined (despite the MOS with high probability of exposure to hazardous noise exposure) would indicate that the current hearing loss is less likely than not caused by noise exposure during time of service. See March 2020 C&P Examination. An addendum medical opinion was sought in January 2021. The examiner agreed with the medical opinions rendered by the November 2014 and June 2017 VA examiners. The examiner further stated that because hearing was normal at separation with no significant threshold shifts having occurred during active duty service, there is no evidence that military noise exposure caused a permanent noise injury affecting hearing sensitivity. Therefore, the Veteran's current hearing loss is deemed less likely as not (less than 50 percent probability) caused by or a result of military noise exposure for the right and left ears. See January 2021 C&P examination. The Board finds the evidence to be in relative equipoise as to whether the Veteran's bilateral hearing loss began during active service or was otherwise caused by his service. The VA examiners have all stated that the Veteran's bilateral hearing loss is less likely than not (less than 50 percent probability) caused by or a result of his active duty service. The examiners have provided rationales indicating that, although the Veteran's MOS is linked to high noise exposure, his entrance, in-service and separation examinations proved to be within normal limits. However, the Board does not find these negative nexus opinions to be very persuasive. When there is no diagnosis of hearing loss in service, the absence of documented hearing loss in service is not fatal to a service connection claim for such disability. Ledford v. Derwinski, 3 Vet. App. 87 (1992); Hensley v. Brown, 5 Vet. App. 155 (1993). The VA examiners have further alluded that the likely etiology of the Veteran's hearing loss is his post-service noise exposure as a truck driver, drywall installer and municipality inspector (which the Veteran has credibly refuted, noting that he had minimal noise exposure compared to his extremely noisy in-service environment). The Board also note that the VA examiners did not properly address the Veteran's lay statements and the fact that he has been pursuing a hearing loss disability claim immediately upon leaving service (even though he was found not to have a hearing loss disability for VA purposes at that time). The December 2018 private examiner provided a positive nexus opinion. However, the examiner noted that she did not have access to the Veteran's previous audiological service records. While the Board notes case law that an examiner need not review the claims file prior to providing as opinion, it does require that the examiner is aware of all pertinent facts from the Veteran's history. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (Vet. App. 2008). Thus, the Board also finds the private opinion less persuasive. In light of the conflicting medical opinions of record, the Veteran's credible reports that his only significant noise exposure occurred during his military service, the conceded in-service acoustic trauma, and a claim of continuity of gradual symptoms since service, the Board finds that the evidence is at least in relative equipoise as to this issue. Accordingly, affording the Veteran the benefit of the doubt, his claim of entitlement to service connection for a bilateral hearing loss disability is granted. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. M. Rogers, 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.