Citation Nr: 22016266 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 14-00 890 DATE: March 21, 2022 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his bilateral hearing loss is at least as likely as not related to his service as a field artillery crewman. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran honorably served in the United States Army from October 1973 to October 1976. This matter comes before the Board of Veterans' Appeals (Board) from an appeal of a July 2011 rating decision of the Department of Veterans Affairs (VA). The Veteran testified at a hearing before a Veterans Law Judge in November 2020, a transcript is of record. Unfortunately, the presiding Veterans Law Judge has since retired from the Board. The Veteran was notified of such and offered the opportunity to have a new hearing in January 2022, which he declined. The Board denied this claim in March 2021. The Veteran subsequently appealed to the United States Court of Appeals for Veterans Claims (Court), and the parties entered into a Joint Motion for Partial Remand (JMPR) in October 2021. In pertinent part, the Court vacated the Board's March 2021 denial of entitlement to service connection for bilateral hearing loss, citing inadequate reasons and bases. Neither the Veteran nor his representative raise any remaining issues with the duty to notify or duty to assist regarding this claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). 1. Entitlement to service connection for bilateral hearing loss is granted. The Veteran asserts his bilateral hearing loss is due to his service as a field artillery crewman. See September 2011 notice of disagreement. The Veteran has a diagnosis of bilateral sensorineural hearing loss. See June 2011 VA audiological examination. The VA Regional Office has conceded exposure to acoustic trauma based on the Veteran's military occupational specialty (MOS). See November 2013 statement of the case. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. See 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. See Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The Veteran's current diagnosis and the conceded noise exposure account for the first two elements under Shedden, supra. Thus, the remaining question is whether the current disability is related to service. On this question there are opinions in favor of and against the claim. The evidence against the claim includes a June 2011 VA audiological examination wherein the examiner opined the Veteran's bilateral hearing loss was less likely than not (50 percent probability) related to his service. See June 2011 VA audiological examination. The examiner reasoned that the Veteran's hearing acuity was within normal limits at entrance and separation from service, with no standard threshold shifts evident. See id.; October 1973 entrance examination; August 1976 separation examination. The examiner also relied upon a September 2005 Institute of Medicine (IOM) Report on noise exposure in the military, citing it for the proposition that there is no scientific support for delayed onset noise-induced hearing loss. See June 2011 VA audiological examination. The examiner concluded by stating that it is possible aging, caffeine, and nicotine had contributed to the Veteran's hearing loss and tinnitus, but it was impossible to opine on the etiology of his hearing loss without resorting to mere speculation. See id. The Board finds the June 2011 VA audiological examination inadequate for the Board's purposes. First, the examiner concluded there had been no standard threshold shifts evident between the Veteran's entrance and separation examinations. See id. However, a review of these records demonstrates that there was a bilateral threshold shift of ten decibels at 500 hertz, and a shift of 5 decibels at almost every other frequency. See October 1973 Service Entrance Examination; August 1976 Service Separation Examination. Additionally, the separation examination did not test at 3000 hertz. See id. It is unclear how the examiner concluded there was no standard threshold shift at 3000 hertz when the Veteran was not tested at that frequency upon separation. Indeed, there are indications in the file that the frequency of 3000 hertz is significant in diagnosing the Veteran. A private audiologist has concluded that "[the Veteran's] subjective assessment of tinnitus tone and level judged to be 3000 Hz, bilaterally, at 78 dB HL." See January 2021 private audiological examination (emphasis added). Second, the June 2011 VA audiological examination relies upon an IOM Report regarding delayed-onset hearing loss. The Board acknowledges that the examiner specifically cited a "9/05" IOM Report entitled "Noise and Military Service Implications for Hearing Loss and Tinnitus." The Board notes, however, that in McCray v. Wilkie, 31 Vet. App. 243 (2019), the Court found that the 2006 version of the same IOM study contained contradictory findings. McCray highlighted that the study found: "based on current knowledge of cochlear physiology there was no significant scientific basis for the existence of delayed-onset hearing loss." See id. at 256 (internal citations omitted). However, as McCray further instructs, the IOM report also indicated that "[t]here is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure" and that "definitive studies to address this issue have not been performed." See id. (internal citations omitted). Accordingly, the Board finds the June 2011 audiological examination's reliance upon this IOM report unpersuasive. Third, the June 2011 audiological examination concludes by opining that the etiology of the Veteran's hearing loss is not the conceded acoustic trauma, but rather, any further determination would be mere speculation. See June 2011 VA audiological examination. The examiner does not specify whether the speculation would be due to deficiencies in the state of general medical knowledge, with the record, or the examiner. See id. It is thus unclear whether the particular examiner could not opine without speculation, or if any examiner would have to resort to speculation, or if further documentation in the record would eliminate the need for speculation. For the foregoing reasons, the Board finds this June 2011 opinion to be inadequate for its purposes and affords it very little probative value. The evidence in favor of the claim includes two private audiological opinions, as well as the Veteran's own testimony. Two separate doctors of audiology have opined that the Veteran's hearing loss is more likely than not due to his military service as a field artillery crewman. See January 2022 private audiological examination; January 2021 private audiological examination. The Board finds these physician's opinions to have some probative value. Moreover, the Veteran has credibly explained why there was an extended time period between service and treatment, stating that he was told by his lieutenant when he was separating from service that he wasn't eligible for "anything but college and home loans." See November 2020 hearing testimony. According to the Veteran, when he was told something by his lieutenant and his military superiors, the Veteran believed him. See id. The Veteran has further explained that while he observed symptoms of his tinnitus since service, he wasn't aware he had hearing loss until others began pointing it out to him. See id. Upon review of the record, the Board finds the evidence to at least be in approximate balance as to whether the Veteran's current bilateral hearing loss is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for bilateral hearing loss is warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Maisel, S. Alexander 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.