Citation Nr: 21042773 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 19-36 399 DATE: July 13, 2021 ORDER Entitlement to service connection for right ear hearing loss is granted. REMANDED Entitlement to a compensable evaluation for left ear hearing loss is remanded. FINDING OF FACT There is at least an approximate balance of positive and negative evidence as to whether the Veteran's right ear hearing loss is related to his active duty service. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for entitlement to service connection for right ear hearing loss have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in active duty service with the Air Force from December 1963 to December 1967. This matter is on appeal from a July 2018 rating decision. The Veteran was afforded a December 2020 hearing before the undersigned Judge. A transcript of the hearing has been associated with the claims record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Service Connection Service connection is granted on a direct basis when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Service connection for chronic diseases listed in 38 U.S.C. sections 1101 (3) and 38 C.F.R. § 3.309(a), such as bilateral sensorineural hearing loss, may be established on a presumptive basis if the chronic disease was shown as chronic in service; manifested to a compensable degree within a presumptive period, usually one year, after separation from service; or was noted in service with continuity of symptomatology since service. 38 U.S.C. §§ 1112, 1113; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a). For VA purposes, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater, the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz are 26 dB or greater, or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. When evaluating the evidence and rendering a decision on the merits, the Board is required to assess the credibility and probative value of proffered evidence in the context of the record as a whole. See Evans v. West, 12 Vet. App. 22, 26 (1998). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. 38 U.S.C. § 5107(b); See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran contends that his right ear hearing loss is related to his active duty service. At the Veteran's July 2018 VA examination, the Veteran's puretone thresholds were measured as followed: HERTZ 1000 2000 3000 4000 AVG RIGHT 40 35 55 55 46 LEFT 30 30 40 50 38 Maryland CNC findings were 98 percent for the right ear and 98 percent for the left ear. The examiner gave a diagnosis of bilateral sensorineural hearing loss. Accordingly, the Board finds the Veteran with a current diagnosed right ear hearing loss meeting the criteria under 3.385. The Board notes with regard to in-service audiometric testing, the hearing loss regulation defines hearing loss based on decibel measurement recorded in ISO (International Organization for Standardization) or ANSI (American National Standards Institute) units. 38 C.F.R. § 3.385. Audiometric testing dated before January 1, 1967 are presumed (unless otherwise stated) to be in ASA (American Standard Association) units. Consequently, VA practice is to convert the ASA units to ISO or 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 Add 5-15 dB to convert to ISO-ANSI: 250 Hz 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz 6000 Hz 8000 Hz +15 +15 +10 +10 +10 +5 +10 +10 Review of the Veteran's service treatment records (STRs) shows at his December 1963 enlistment examination, the Veteran's thresholds were measured as followed with the conversion to the ISO-ANSI standard in adjacent parenthesis: HERTZ 1000 2000 3000 4000 AVG RIGHT -10 (0) -10 (0) -- -10 (-5) -- LEFT -10 (0) -10 (0) -- -5 (0) -- At the Veteran's December 1967 separation examination, the Veteran's thresholds were measured as followed: HERTZ 1000 2000 3000 4000 AVG RIGHT 0 0 0 0 - LEFT 0 0 5 15 - Review of the Veteran's STRs do not show any other complaints, treatments or diagnoses for hearing loss. The Veteran did not report any ear issues or hearing loss at his enlistment or separation examination. Review of the Veteran's DD 214 and military personnel record shows the Veteran's military occupational specialty (MOS) as a defensive fire control system mechanic. At the Veteran's July 2018 VA examination, the Veteran reported noise exposure from blow motors "with a loud whine" and jet engines with hearing protection. The examiner noted the Veteran's MOS and found it "has a high probability for noise exposure." The examiner found it was less likely than not that the Veteran's right ear hearing loss a result of military noise exposure. The examiner found the Veteran's STRs were silent for any complaint, diagnoses or treatment for right ear hearing loss and found no significant threshold shift when comparing the Veteran's enlistment and separation examinations. At the Veteran's December 2020 hearing, the Veteran testified that he did not have hearing loss prior to his enlistment. The Veteran stated that he repaired and serviced B52 aircraft and was exposed to noise from loud blower motors and jet engines. The Veteran's representative noted the Veteran was currently service connected for left ear hearing loss and bilateral tinnitus. The Veteran stated that his right ear hearing loss was related to the noise exposure that affected his left ear hearing loss. Although the Veteran's service treatment records do not show any complaints or treatment for hearing loss, the Board finds the Veteran is competent to report that he experienced symptoms of hearing loss during this period. His statements are credible and entitled to probative weight, as they are internally consistent and consistent with other evidence of record, which shows that these symptoms combined with his duties and experiences in service were attributable to the Veteran's current bilateral hearing loss. Furthermore, the July 2018 VA examiner noted the Veteran's STRs indicated the Veteran's MOS was highly probable to noise exposure. The Board also notes the July 2018 VA examiner found the Veteran's left ear hearing loss and tinnitus was at least as likely as not the result of military noise exposure and an July 2018 rating decision rating decision granted service connection for left ear hearing loss and tinnitus. The Board notes the July 2018 VA examiner found it less likely than not that the Veteran's right ear hearing loss was related to his service because of no complaints or diagnoses of hearing loss in service and no threshold shifts between his entrance and separation examination; however, the absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Board finds there is sufficient evidence to support a link between the Veteran's diagnosed right ear hearing loss and his acoustic trauma in service, despite the examiner's findings. As such, in light of the Veteran's acoustic trauma in service, the current diagnosis of hearing loss, and the Veteran's credible statements reporting continuity of symptoms since service, the Board finds the evidence is at least in equipoise. As such, the benefit of the doubt is resolved in the Veteran's favor and service connection for right ear hearing loss is warranted. REASONS FOR REMAND The Board finds that remand is warranted for additional development. As noted above, the Board has granted service connection for right ear hearing loss and the Veteran has appealed the evaluation of his service-connected left ear hearing loss. The Board notes that rating criteria at 38 C.F.R. §§ 4.85 and 4.86 provide for different criteria depending upon whether the hearing loss in one or both ears is service connected. Prior to the grant of service connection for right ear hearing loss, detailed above, service connection had only been established for left ear hearing loss. When defective hearing is service connected in only one ear, in order to determine the percentage rating from Table VII, the non-service-connected ear is assigned a Level I designation, pursuant to the provisions of 38 C.F.R. § 3.383 (2017). 38 C.F.R. § 4.85. Pursuant to the provisions for rating, now that service connection has been established for both ears, the bilateral hearing loss can be rated together based on the severity of each ear by combining the Roman Number designations for each ear using Table VII at 38 C.F.R. § 4.85 (as instructed under 38 C.F.R. § 4.85 (e)). The Board finds that, because of the nature of the rating criteria at 38 C.F.R. §§ 4.85 and 4.86, the issue of a higher initial rating for left ear hearing loss (which is currently before the Board) is inextricably intertwined with the issue of initial rating for the now service-connected right ear hearing loss, as both ears can be rated together. The initial disability rating assigned now that both ears are service connected could significantly change the adjudication of the initial rating issue currently on appeal because it directly relates to how VA rates hearing loss. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). As such, the issue of a higher initial disability rating for left ear hearing loss will be deferred until an initial rating is assigned for right ear hearing loss. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated and outstanding treatment records relating to the Veteran's hearing loss. 2. The Agency of Original Jurisdiction (AOJ) should implement the grant of service connection for right ear hearing loss, including assignment of an initial disability rating and effective date. 3. Readjudicate the Veteran's appeal for a compensable disability rating for left ear hearing loss, to include potentially recharacterizing the issue to entitlement to a compensable disability rating for service-connected bilateral hearing loss. 4. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Yang, 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.