Citation Nr: 21034150 Decision Date: 06/03/21 Archive Date: 06/03/21 DOCKET NO. 16-52 243 DATE: June 3, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDINGS OF FACT 1. The presumption of soundness is not rebutted. Resolving all reasonable doubt in his favor, the Veteran's right ear hearing loss is etiologically related to in-service noise exposure. 2. Resolving all reasonable doubt in his favor, the Veteran's left ear hearing loss is etiologically related to in-service noise exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1111, 1112, 1131, 1154, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service in the United States Army from December 1981 to December 1986. This matter comes before the Board of Veterans' Appeals (Board) following a December 2019 Board Remand. This matter was originally on appeal from an August 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran was afforded a Board hearing before the undersigned Veterans Law Judge (VLJ) in August 2019; a transcript of the proceeding is associated with the claims file. 1. Entitlement to service connection for bilateral hearing loss. The Veteran contends that his current hearing loss is due to in-service noise exposure. He served as a fuel and electrical systems repairman for Abrams tanks, which exposed him to engine noise and gunfire from the tanks. Service connection may be granted for a disability resulting from injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of entitlement to service connection, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. at 247. Service connection may also be granted for certain chronic diseases if manifested to a degree of 10 percent or more within one year of separation from active service. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309. If there is no evidence of a chronic condition during service or the applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing the second and/or third element of a service connection claim. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997). Organic diseases of the nervous system, such as sensorineural hearing loss, are included in the list of chronic diseases under 38 C.F.R. § 3.309(a). Every Veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). To rebut the presumption of sound condition, VA must show by clear and unmistakable evidence (1) that the disease or injury existed prior to service, and (2) that the disease or injury was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. The Veteran's service treatment records (STR) show his September 1981 Report of Medical Examination conducted upon his enlistment noted defective hearing for VA purposes in the right ear. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 30 25 20 30 LEFT 30 30 15 5 20 Upon the Veteran's separation from service, pure tone thresholds, in decibels, were measured as follows in November 1986: HERTZ 500 1000 2000 3000 4000 RIGHT 35 25 20 X 15 LEFT 35 30 20 X 5 The Veteran reported experiencing hearing loss in his November 1986 Report of Medical History. The examiner noted the Veteran experienced high frequency hearing loss. The Veteran underwent a VA audiological examination in August 2011. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 55 45 45 30 35 LEFT 40 40 30 30 40 The examiner noted that STRs revealed pre-existing hearing loss upon enlistment with no threshold shift evident upon separation. The examiner pointed to a 2005 Institute of Medicine Report on noise exposure in the military that concluded that, based upon current knowledge, noise-induced hearing loss occurs immediately. He stated that there is no scientific support for delayed onset of noise-induced hearing loss weeks, months, or years after exposure. The examiner opined that, based upon the Veteran's use of double hearing protection during service, no evidence of a threshold shift, and the fact that his current hearing loss was not a classic noise-induced hearing loss pattern, it is less likely than not that the Veteran's hearing loss is caused by or a result of noise exposure in service. Instead, the examiner stated that the hearing loss is more likely due to other etiologies such as pre-existing hearing loss, occupational noise exposure, hypertension, and usage of potentially ototoxic medicine. The examiner also stated that the Veteran's pre-existing hearing loss was not aggravated beyond its normal progression in service based upon a lack of threshold shifts. The Veteran submitted a private audiological evaluation in March 2018. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 60 45 55 45 50 LEFT 40 50 35 50 85 Following the submittal of additional evidence, the Board remanded the Veteran's claim for another opinion. Following the December 2019 Board remand, an addendum opinion was submitted in December 2019. In regard to the Veteran's right ear the examiner opined the Veteran's right ear hearing loss, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service, injury, event, or illness. The examiner stated the Veteran entered and exited the military with hearing loss. Audiometric examinations are still the standard for identifying severity of hearing loss and no changes were noted during service. With no measurable hearing changes found, any changes in severity would be consistent with natural progression of hearing loss. Many research articles were provided that in summary report "hidden hearing loss" effects that can be found without measurable hearing changes includes tinnitus, difficulty hearing in noise, and exacerbation of age-related hearing loss. The examiner further stated that noise exposure and hearing loss at early ages is linked to greater hearing loss over time with aging. Since the Veteran had pre-existing hearing loss there is no way to differentiate between the long-term effects of his pre-existing hearing loss and his military noise exposure. The examiner stated all current research agrees that early damage can cause increased degree of later loss, however there is no way to distinguish between the noise exposure and pre-existing hearing loss and therefore his hearing loss was not aggravated beyond normal progression during service. Regarding the Veteran's left ear hearing loss, the examiner opined the Veteran's left ear hearing loss was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the Veteran entered and exited the military with hearing loss. Audiometric examinations are still the standard for identifying severity of hearing loss and no changes were noted during service. With no measurable hearing changes found, any changes in severity would be consistent with natural progression of hearing loss. Many research articles were provided that in summary report "hidden hearing loss" effects that can be found without measurable hearing changes includes tinnitus, difficulty hearing in noise, and exacerbation of age-related hearing loss. The examiner again stated noise exposure and hearing loss at early ages is linked to greater hearing loss over time with aging. The examiner further stated that since the Veteran had pre-existing hearing loss there is no way to differentiate between the long-term effects of his pre-existing hearing loss and his military noise exposure. Additionally, all current research agrees that early damage can cause increased degree of later loss however there is no way to distinguish between the noise exposure and preexisting hearing loss and therefore his hearing loss was not aggravated beyond normal progression during service. In March 2021 the Veteran's representative submitted an Appellate Brief. The Veteran's representative stated that the Veteran contends he was not given an examination at separation. The representative stated that when the Veteran entered military service two separate audiograms were taken on September 4, 1981. The record does not indicate why the second examination was chosen for the Veteran's entrance examination numbers. Additionally, the representative argued that the way the separation examiner failed to provide measurement numbers for "3000" and "6000" would allude to whether an audiogram was performed. Furthermore, the representative argued that the December 2019 VA examiner based his rationale on the inability to distinguish between the noise exposure levels and pre-existing hearing loss. The representative also included two studies to support the Veteran's contention that his right hearing loss was aggravated beyond natural progression and his left ear hearing loss is due to his service. The National Institutes of Health article indicates that when one is exposed to loud noise over a long period of time, one may slowly start to lose his hearing. Because the damage from noise exposure is usually gradual, one might not notice it, or one might ignore the signs of hearing loss until they become more pronounced. The second article notes up to 30 percent to 50 percent of hair cells can be damaged or destroyed before changes in hearing can be measured by a hearing test. By the time one notices hearing loss, many hair cells have been destroyed and cannot be repaired. The Board notes that while the December 2019 VA examiner provided a negative nexus opinion, the underlying rationale includes the finding that since the Veteran had pre-existing right ear hearing loss there is no way to differentiate between the long-term effects of his pre-existing hearing loss and his military noise exposure. Given this qualification, the Board finds the standard of clear and unmistakable evidence that the Veteran's right ear hearing loss was not aggravated beyond normal progression during service is not met. As such, the presumption of soundness is not rebutted. When the presumption of soundness is not rebutted, the case converts to one for direct service connection. See Wagner, 370 F.3d at 1096. Additionally, the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 160 (1993). In regard to the Veteran's left ear hearing loss, while he did not have hearing loss for VA purposes upon enlistment, he did have Hensley hearing loss. The VA examiner similarly stated that since the Veteran had pre-existing hearing loss there is no way to differentiate between the long-term effects of his pre-existing hearing loss and his military noise exposure. The record reflects that service connection is in effect for tinnitus. The Veteran also reported hearing loss upon separation from service. The Court of Appeals for Veterans Claims reiterated in Wise that "[b]y requiring only an 'approximate balance of positive and negative evidence' to prove any issue material to a claim for Veterans benefits, 38 U.S.C. § 5107(b), the nation, 'in recognition of our debt to our Veterans,' has 'taken upon itself the risk of error' in awarding such benefits." Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (citing Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990)). Resolving all reasonable doubt in his favor, the Board finds that the Veteran's bilateral hearing loss is etiologically related to in-service noise exposure. Accordingly, service connection for bilateral hearing loss is warranted. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Daley, 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.