Citation Nr: 21032792 Decision Date: 05/28/21 Archive Date: 05/28/21 DOCKET NO. 18-06 016 DATE: May 28, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran has active service from June 1966 to June 1968. This case is before the Board of Veterans' Appeals (Board) from a January 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared before the undersigned Veterans' Law Judge at a January 2021 hearing. Bilateral hearing loss. The Veteran contends his hearing loss results from his active service with an engineering battalion and noise exposure from artillery and infantry. The Veteran has described first noticing his hearing loss during service. He recalls having difficulty hearing cadence commands while marching. He also testified that during training with the .50 caliber machinegun, he could not hear talking because it was going rapid fire. The Veteran described training on the 50 caliber, 60 caliber, rocket launcher, and the grenadier (01/06/2021 Hearing Transcript, pgs. 5 and 9; 02/02/2016 NOD; 10/08/2015 VA 21-4138 Statement In Support of Claim). 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). In a claim of service connection for impaired hearing, demonstration of the first Shedden element, i.e., the existence of a current disability, is subject to the additional requirements of 38 C.F.R. § 3.385, which provides that service connection for impaired hearing shall not be established until the hearing loss meets pure tone and/or speech recognition criteria. Under this regulation, hearing status will be considered a disability for the purposes of service connection when the auditory thresholds in any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels (dB) or greater; the auditory thresholds for at least three of these frequencies are 26 dB or greater; and/or when speech recognition scores using the Maryland CNC Test are less than 94 percent. The United States Court of Appeals for Veterans Claims (Court) has indicated that the threshold for normal hearing is between 0 and 20 dB and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Where the Veteran asserts entitlement to a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303 (b) by demonstrating a continuity of symptomatology since service, but an award solely on this basis is only permissible if the chronic disease is listed under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Sensorineural hearing loss (organic disease of the nervous system) is a chronic disease under 38 C.F.R. § 3.309 (a), an award of service connection is appropriate solely based on evidence of continuity of symptomatology. Walker, 708 F.3d at 1336-40. The Veteran was afforded a January 2016 VA examination for hearing loss and tinnitus. The authorized audiological evaluation at that time, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 50 70 75 LEFT 20 20 55 70 65 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 92 in the left ear (1/05/2016 C&P Exam, pgs. 1 and 2). Bilaterally, the auditory thresholds exceed 26 dB and are above 40 decibels (dB) at the frequencies of 2000, 3000 and 4000, and speech recognition scores using the Maryland CNC Test are less than 94 percent. A current diagnosis of bilateral hearing loss is confirmed by the January 2016 VA examination. Concluding that the Veteran has a current disability of bilateral hearing loss, the question for the Board is whether the current disability began during service or is at least as likely as not related to an in-service injury, event, or disease. Combat and artillery exposure are confirmed by the Veteran's DD214, as are medals include 2 class gunner; marksman; sharpshooter); service record notes service in Vietnam December 1966 to December 1967 and Vietnam counter offensive (10/28/2015 Military Personnel Record, pg. 1; 10/28/2015 Military Personnel Record, pg. 14 and 15). The Board also has considered the Veteran's testimony of inservice noise exposure, finding it credible. Exposure to acoustic trauma is conceded based on the circumstances of the Veteran's service, the decorations that he was awarded, and his credible lay statements. Having conceded acoustic trauma, the element of in-service incurrence is established. The final question for consideration is whether the current hearing loss is related to the conceded in-service noise exposure. Upon entry the Veteran's ears were clinically evaluated as normal and no hearing disease or disability was note on his entrance examination. He was found qualified for induction. (10/28/2015 Military Personnel Record, pg. 8). The Board notes that the Veteran's entrance examination was conducted prior to January 1, 1967, when it is presumed testing results were recorded using American Standards Association (ASA) units. The current definition for a hearing loss disability found at 38 C.F.R. § 3.385 is based on ISO-ANSI units. Where it is necessary to facilitate data comparison for VA purposes, audiometric data originally recorded using ASA standards will be converted to ISO-ANSI standard by adding between 5 and 15 dB to the recorded data as follows: Hertz 500 1000 2000 3000 4000 6000 Add +15 +10 +10 +10 +5 +10 The Veteran's induction physical audiometric results are below, with the conversion in parenthesis: HERTZ 500 1000 2000 3000 4000 RIGHT 15 (30) 0 (10) 0 (10) 0 (10) 5 (10) LEFT 15 (30) 0 (10) 5 (15) 10 (20) 20 (25) The Board notes the Veteran's May 1968 separation audiogram was conducted between January 1, 1967 and December 31, 1970, and although it is identified as "MAICO," it is unclear whether thresholds were recorded using American Standards Association (ASA) units or International Standards Organization-American National Standards Institute (ISO-ANSI) units. The Veteran's separation physical audiometric results are below, with the conversion in parenthesis: HERTZ 500 1000 2000 3000 4000 RIGHT 5 (20) 5 (15) 10 (20) N/A 10 (15) LEFT 0 (15) 0 (10) 15 (25) N/A 25 (30) The audiometric results shown at separation did not show hearing loss consistent with the criteria under 3.385 for disability purposes and also did not reveal clinical hearing loss per Hensley for the right ear. However, the Veteran displayed some degree of hearing loss at 2000 and 4000 Hertz, pursuant to Hensley, as the thresholds at those levels were over 20 dB. Associated with the January 2016 VA examination for hearing loss and tinnitus, the VA examiner provided a negative nexus opinion, finding that the Veteran's hearing loss was not as likely as not (50 percent probability) caused by or a result of an event in military service. In his rationale, the examiner relied on a comparison of pre-induction testing in 1966 with separation testing in 1968, noting there was no significant change or decrease in thresholds during active duty. It is not clear from the rationale whether the examiner considered the thresholds as converted from ASA to ISO-ANSI standard, or whether threshold levels over 20 dB indicate some level of hearing loss pursuant to Hensley. The examiner did not address the lay reports, particularly as to continuity of symptomatology. Because sensorineural hearing loss is considered an organic disease of the nervous system, it is an enumerated chronic disease under 3.309(a). Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, October 4, 1995. As such, an award of service connection is permissible based solely on continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Given the omissions as set forth, the Board finds the January 2016 VA examination inadequate, requiring remand for an addendum opinion. The matters are REMANDED for the following action: Return the claims file to the VA examiner who conducted the Veteran's January 2016 audiology examination. If the January 2016 VA examiner is not available, the claims file should be provided to an appropriately qualified medical professional to render the requested opinion. If the examiner determines that another VA examination is necessary, one should be scheduled. The claims file and a copy of this Remand must be made available to the examiner. The examiner should note in the examination report that the claims file and the Remand have been reviewed. Based on a review of the record, to include the in-service audiometric test results as converted to ISO standards, and a new examination if necessary, the reviewer must address the following: Whether it is at least as likely as not (a 50 percent or greater probability) that any currently existing hearing loss began during service or is etiologically related to conceded in-service noise exposure. The examiner is advised that the term "as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of conclusion as it is to find against it. The examiner is to assume the Veteran is competent to describe his symptoms and complaints of onset of hearing loss, to include his report that he first noted hearing loss while marching during service, and any other hearing loss symptomology he experienced in service and thereafter. The examiner should address the Veteran's history in terms continuity of symptomatology since service. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. In formulating this opinion, the examiner should address whether the 1966 and 1968 in-service audiometric test results, as converted to ISO-ANSI standards, indicate a loss of hearing acuity attributable to the Veteran's active service. The examiner is reminded that pursuant to Hensley v. Brown, 5 Vet. App. 155, 157 (1993), the threshold for normal hearing is between 0 and 20 dB and higher thresholds show some degree of hearing loss. In providing these opinions, the examiner must recognize the fact that no diagnosis of hearing loss or tinnitus in service is not, by itself, a sufficient reason to deny service connection for hearing loss or tinnitus. If a new examination is warranted, all indicated tests and studies, including controlled Maryland CNC speech discrimination test and a puretone audiometry test, should be conducted, and the reports should be incorporated into the examination report. The examination report must include a complete rationale for all opinions expressed and a discussion of the facts and medical principles involved. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. A. Myers 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.