Citation Nr: 22014558 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 17-52 160 DATE: March 14, 2022 ORDER Entitlement to service connection for left ear hearing loss is granted. FINDING OF FACT Left ear hearing loss was incurred in service. CONCLUSION OF LAW The criteria for entitlement to service connection for left ear hearing loss have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1969 to April 1977. This matter is before the Board of Veterans' Appeals (Board) on appeal of an October 2016 Department of Veterans Affairs (VA) rating decision. In December 2019, the Board denied entitlement to service connection for right ear hearing loss and remanded entitlement to service connection for a left ear hearing loss. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2020 Order, the Court granted a Joint Motion for Remand (JMR) of the Veteran and the Secretary of Veterans Affairs (the Parties) to vacate and remand the portion of the Board's December 2019 decision that denied entitlement to service connection for right ear hearing loss, with instructions that the Veteran be afforded a new Board hearing regarding that issue. In October 2021 the Veteran testified at a hearing before a different Veterans Law Judge. The Veteran's October 2021 Board hearing testimony was explicitly limited to the issue of entitlement to service connection for a right ear hearing loss and did not include testimony regarding the claimed left ear hearing loss. Thus, the issue of entitlement to service connection for a right ear hearing loss will be the subject of a separate Board decision. The issue of entitlement to service connection for a left ear hearing loss has been returned to the Board and is the sole subject of this decision. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection for a disability requires evidence of: (1) a current disability; (2) a disease or injury in service, and (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A veteran will be found to have hearing loss for VA purposes 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. The service treatment records contain February 1968 and March 1977 audiological reports which do not reveal left ear hearing loss for VA purposes. While the March 1977 separation audiological test results appear to demonstrate increased hearing loss compared to the February 1968 results, the February 1968 results were reported in standards set forth by the American Standards Association (ASA). After December 31, 1970 it is assumed that audiometric test results were reported in standards set forth by the International Standards Organization (ISO)-American National Standards Institute (ANSI). To facilitate data comparison, ASA standards can be converted to ISO-ANSI standards. After conversion to ISO-ANSI standards, the March 1977 results do not document increased left ear hearing loss thresholds at any frequency. A July 1970 service treatment record noted that the Veteran complained of "occasional hearing loss" and requested his "ears to be flushed clean." In July 2015 a VA examiner diagnosed a left ear mixed hearing loss but opined that it was less likely than not related to active-duty service. The examiner reasoned that the service treatment records documented a threshold shift in left ear hearing on separation. However, the examiner noted that the Veteran had a congenital cleft palate and as a result, opined that "this drop could be conductive and temporary in nature." On a private audiological examination in October 2015, the Veteran was diagnosed with left ear mixed hearing loss. The audiologist opined that the Veteran's hearing loss was at "least as likely as not caused by or was a result of noise exposure during his military service from 1969 to 1977." The examiner noted that the Veteran reported exposure to "excessively loud noise (grenade explosion)" during service. In September 2016 a VA examiner diagnosed a left ear mixed hearing loss but opined that it was less likely than not related to active-duty service. The examiner reasoned that left ear hearing was within normal limits on entrance and separation audiological screening. The examiner noted that medical literature indicated "insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure" and that a prolonged delay in the onset of noise-induced hearing loss was "unlikely." At his September 2019 Board hearing, the Veteran described exposure to hazardous noise in service including gunfire and a nearby grenade detonation, resulting in ear numbness and pain. The Veteran described experiencing decreasing hearing and tinnitus during service. The Veteran further reported having surgery on his left ear at the University of Alabama at Birmingham (UAB) for a deteriorated bone behind his ear drum. He contended that the deterioration which necessitated surgery was caused by the in-service grenade explosion. In its December 2019 remand instructions, the Board directed the agency of original jurisdiction (AOJ) to obtain any scanned private medical records in VA's possession related to treatment from UAB, to specifically include records referenced by June 5, 2017 and September 7, 2017 VA treatment records. In January 2020, the AOJ obtained duplicate copies of the June 5, and September 7 VA treatment records noting outside treatment from UAB, but made no attempt to obtain the UAB records themselves. On review, the Board attributes no probative value to the negative July 2015 VA examiner's opinion as that examiner's rationale was based on the erroneous finding that the Veteran demonstrated a left ear threshold shift on separation. As discussed above, after conversion of the February 1968 audiological results to ISO-ANSI standards, no such threshold shift is shown. As the July 2015 VA opinion is based on an inaccurate factual assessment, it is afforded no probative value. The Board attributes approximately equal probative value to the favorable October 2015 private opinion as to the negative September 2016 VA opinion. The October 2015 examiner reasoned that left ear hearing loss was likely related to in-service noise injury based on the Veteran's description of the nearby grenade detonation in service. By contrast, the September 2016 VA examiner reasoned that a prolonged delay in the onset of noise-induced hearing loss was "unlikely." The examiner did not address the contention that hazardous noise exposure in service caused an injury which subsequently required surgical treatment and in turn contributed to left ear hearing loss. (Continued on next page) As the probative evidence of record is in approximate balance as to whether left ear hearing loss is related to an in-service injury or illness, entitlement to service connection for left ear hearing loss is granted. C. TRUEBA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bametzreider, Paul J. 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.