Citation Nr: 21041191 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 19-27 000 DATE: July 8, 2021 ORDER Service connection for a bilateral hearing loss disability is granted. FINDING OF FACT The evidence is at least evenly balanced as to the Veteran's bilateral hearing loss disability had onset during service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for a bilateral hearing loss disability have been met. 38 C.F.R. § 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1966 to July 1968. This case is before the Board of Veterans' Appeals (Board) on appeal from an August 2018 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that decision, the RO denied reopening of the previously denied claim for service connection for a bilateral hearing loss disability because the evidence submitted was not new and material. In August 2018, VA received the Veteran's Notice of Disagreement (NOD). In July 2019, the RO issued a Statement of the Case (SOC). In September 2019, VA received the Veteran's VA Form 9 appeal to the Board. In August 2020, the Board reopened the claim for service connection for bilateral hearing loss and remanded the case for further development and adjudicative action. In April 2021, the Board again remanded the case for further development and adjudicative action. Service Connection 1. Entitlement to service connection for a bilateral hearing loss disability. The Veteran seeks service connection for a bilateral hearing loss disability. Specifically, he has contended that his hearing loss began during service as a result of exposure to machine gun fire, grenade explosions, and small arms fire without hearing protection during basic training and exposure to M14 and M16 fire without hearing protection during annual weapons qualifications courses. See September 2019 VA Form 9. 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). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service-connected; if a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, such chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). Impaired hearing is defined as a disability under VA law when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels (dB) 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. The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Initially, the Veteran is competent to report symptoms of hearing loss. See Barr v. Nicholson, 21 Vet. App. 303 (2007). However, the Veteran's military occupational specialty (MOS) of personnel clerk is not notable for noise exposure. Nonetheless, a record of assignments shows that the Veteran underwent basic training from July to September 1966. Furthermore, the Veteran's DD Form 214 shows that the Veteran was awarded a Rifle Expert badge during service. Accordingly, his assertions regarding in-service noise exposure are credible because they are consistent with the evidence of record. Turning to the medical evidence of record, the Veteran's service treatment records (STRs) show that he was administered audiograms at his July 1966 entrance into active service and July 1968 separation from active service. Historically, when interpreting audiometric data from STRs, Service Departments changed from using American Standards Association (ASA) standards, to using International Standards Organization American National Standards Institute (ISO-ANSI) standards when providing audiograms beginning at some point between approximately January 1, 1967 and December 31, 1970, however, the conversion date was not consistent between all branches of the Armed Forces. Accordingly, if the standard used is not clearly indicated on the Service Department audiogram(s), it is presumed that prior to January 1, 1967 the ASA standard was used. For in-service audiograms conducted between January 1, 1967 and December 31, 1970, where the standard used is unclear, the data under both ASA and ISO-ANSI standards will be considered. For in-service audiograms conducted after December 31, 1970, it is presumed that the ISO-ANSI standard was used. As noted, the Veteran was administered an audiogram at July 1966 entrance into service. The puretone thresholds (converted to ISO units in parentheses) are as follows: Hertz (Hz) 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 5 (20) 5 (15) 10 (20) 10 (20) 15 (5) Left 5 (20) 10 (20) 15 (25) 15 (25) 20 (25) If use of the ASA standard is presumed, then the above audiogram is reflective of some degree of hearing loss in the left ear at the 2000, 3000, and 4000 Hertz frequencies. Hensley, 5 Vet. App. at 157. STRs show that the Veteran received another audiogram prior to separation from service. The Veteran claims to not recall receiving a separation physical and that the audiological results were "concocted." December 2020 brief. Nonetheless, there is no evidence beyond the Veteran's contentions to support this theory. Furthermore, a note above the audiological results appears to state that the results are in ASA units; however, the results must nevertheless be evaluated under both standards. The puretone thresholds as recorded in the July 1968 audiogram are as follows: Hertz (Hz) 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 10 (25) 10 (20) 10 (30) N/A 10 (15) Left 10 (25) 10 (20) 10 (20) N/A 25 (30) The ASA standard is considered to have been used, the then the above audiogram is reflective of some degree of hearing loss in right ear at the 500 and 2000 Hertz frequencies and in the left ear at the 500 and 4000 Hertz frequencies. If the ISO-ANSI standard is considered to have been used, then there is some degree of hearing loss at the 4000 Hertz frequency in the left ear. Hensley, 5 Vet. App. at 157. Furthermore, the Veteran has submitted audiological results dated between 1982 and 2001. A November 1982 audiogram revealed some degree of hearing loss at the 4000 Hertz frequency in the right ear and the 2000 and 4000 Hertz frequencies in the left ear; puretone thresholds were 25 decibels at all frequencies indicated. All audiograms dated through 2001 reflect that the Veteran had some degree of hearing loss. See audiograms, 1982-2001. Nonetheless, the Veteran has denied occupational and/or recreational noise exposure following service, to include employment as a forklift driver in a warehouse. The Veteran received an initial VA examination for his bilateral hearing loss disability in April 2007. Average puretone thresholds across the 500, 1000, 2000, 3000, and 4000 Hertz frequencies were 36 decibels for the right ear and 34 decibels for the left ear. Speech discrimination scores using the CNC word list were 88 percent for the right ear and 92 percent for the left ear. Regarding, the etiology of the bilateral hearing loss, the examiner opined that the bilateral hearing loss disability was not "related to the period of military service." The examiner reasoned that, "the hearing was normal at the time of separation which indicates that the hearing loss that he has today came about because of activities subsequent to his period of military service." During the current period on appeal, the Veteran received a VA examination for his bilateral hearing loss disability in August 2020. Furthermore, an addendum opinion was completed in April 2021. During the August 2020 VA examination, the Veteran tested at an average puretone threshold of 48.75 decibels for the right ear and 52.50 decibels for the left ear. The puretone thresholds recorded are as follows: Hertz (Hz) 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 35 35 50 55 55 Left 30 35 50 60 60 Speech discrimination using the CNC word list were 94 percent for the right ear and 96 percent for the left ear. Based on the above, the examiner provided a diagnosis of bilateral sensorineural hearing loss. However, the examiner opined that the bilateral hearing loss was less likely than not caused by or a result of an event in active service. In this regard, the examiner reasoned that STRs "were negative for significant threshold shifts" and the Veteran "separated with normal hearing." Moreover, the examiner referred to a September 2005 Institute of Medicine (IOM) regarding delayed onset of hearing loss to indicate that the Veteran's hearing loss "is likely due to other factors" given that there was "no evidence or complaint of hearing loss within a reasonable time post active duty." Notably, the August 2020 examiner linked the Veteran's now-service-connected tinnitus to his bilateral hearing loss disability, Following the April 2021 Board remand, an April 2021 VA opinion (provided by an audiologist other than the August 2020 examiner) was associated the claims file. The April 2021 examiner provided opinions for both the bilateral hearing loss disability and the now-service-connected tinnitus. Regarding the etiology of the bilateral hearing loss disability, the April 2021 examiner opined that the bilateral hearing loss was less likely than not related to an in-service injury, event, or illness. The examiner reasoned that the Veteran had "normal hearing sensitivity at both the entrance (5/13/1966) and separation (5/18/1968) exams with no significant shifts." Furthermore, the examiner noted that the 1982 hearing examination reflected "normal hearing in the left ear and a mild hearing loss (only present at 6000 Hz) in the right ear." The examiner concluded that the Veteran's statements regarding onset of hearing loss during service were inconsistent with the STR evidence. Finally, the examiner cited the above-mentioned IOM report to show that delayed onset of hearing loss long after separation from service would be unlikely. However, the April 2021 examiner also provided a positive nexus opinion for the tinnitus. Although the examiner found no direct evidence of tinnitus in the claims file, the examiner nevertheless noted that the Veteran's reported history of tinnitus with in-service onset was consistent with the circumstances of his service. The examiner placed significant weight on the Veteran's receipt of a Rifle Expert Badge, "which confirms noise exposure from rifles most likely without the use of proper hearing protection." Given the above, the examiner concluded that the Veteran "would likely have been exposed to levels of noise which could contribute to the onset of noise-inducted tinnitus." Notably, all opinions of record regarding the etiology of the Veteran's bilateral hearing loss fail to address the presumption that the July 1966 audiogram was recorded using the ASA standard or consider the July 1968 audiogram under both the ASA and ISO-ANSI standards. When evaluated under the ASA standard (and converted to ISO-ANSI units), the July 1968 audiogram reflects that there was some degree of hearing loss in four of the relevant frequencies, including at two frequencies in the right ear which were previously normal. Furthermore, no opinion acknowledges that the November 1982 audiogram dated approximately 14 years after service does, in fact, indicate some degree of hearing loss in the 4000 Hertz frequency in the right ear and at the 2000, 4000, and 6000 Hertz frequencies in the left ear with puretone thresholds of 25 decibels in these frequencies. As noted above, for VA purposes, puretone thresholds greater than 20 decibels are indicative of some degree of hearing loss. Hensley, 5 Vet. App. at 157. Given the errors identified above, none of the opinions regarding the etiology of the Veteran's bilateral hearing loss disability are afforded any probative value. However, as discussed, the Veteran reported onset of hearing loss during service. Moreover, the July 1968 separation audiogram reflects that the Veteran experienced some degree of hearing loss in multiple frequencies in both ears when considered to use the ASA standard and converted to ISO-ANSI units. Similarly, the September 1982 audiogram indicates some degree of hearing loss. Furthermore, the August 2020 examiner concluded that the Veteran's bilateral hearing loss disability and service-connected tinnitus were associated, and the April 2021 examiner linked the Veteran's tinnitus, which had onset during service, to noise exposure during service. Given the above, the totality of the evidence is at least evenly balanced as to whether the Veteran's bilateral hearing loss had onset during service with continuing symptomatology to the present. When, as here, (Continued on Next Page) there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Accordingly, and with resolution of all doubt in the Veteran's favor, service connection for a bilateral hearing loss disability is warranted. TIFFANY HANSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Small, Attorney Advisor 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.