Citation Nr: 22018946 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 17-04 620A DATE: March 30, 2022 ORDER Entitlement to service connection for right ear hearing loss is granted. FINDING OF FACT The Veteran's current right ear hearing loss is related to acoustic trauma in service. CONCLUSION OF LAW The criteria for entitlement to service connection for right 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 in the United States Army on active duty from October 1973 to March 1974 and in the Army National Guard from June 1976 to March 1989. This case comes to the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision of a Department of Veterans' Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran timely filed a substantive appeal in February 2016. While the Veteran did later request a Travel Board hearing, he later withdrew his request for a hearing. See September 2021 Correspondence. This appeal was twice previously remanded for further development by the Board in January 2019 and October 2021. After the most recent, October 2021, remand, the AOJ granted service connection for left ear hearing loss and tinnitus; thus, entitlement to service connection for right ear hearing loss is the sole issue remaining before the Board. See December 2021 Rating Decision (granting entitlement to service connection for tinnitus and left ear hearing loss). The Veteran asserts that his right ear hearing loss is related to his active service. See March 2015 VA Form 21-526 (claiming tinnitus and "hearing loss"). The Board agrees. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). 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, 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the above frequencies are 26 dB 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 dB; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 157 (1993). The United States Court of Appeals for Veterans Claims (Court) has held that service connection may be granted for hearing loss where the Veteran can establish a nexus between their hearing loss and a disability or injury they suffered while in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for hearing loss, which first met VA's definition of disability after service. Hensley, 5 Vet. App. at 159. Here, the record shows that the Veteran has a current right ear hearing loss disability pursuant to 38 C.F.R. § 3.385, satisfying the first element of service connection. The Veteran's July 2015 VA audiogram shows puretone thresholds of 40 dB at 3000 Hz in both ears. See also December 2021 VA examination report (puretone threshold of 45 dB in left ear and 50 dB in right ear at 3000 Hz). Regarding an in-service event or injury, the Veteran consistently and credibly relates that he was exposed to acoustic trauma principally during the firing of tank ammunition, given his military occupational specialty as an armor officer. See, e.g., June 2017 VA Form 21-4138 ("My hearing loss was due to continuous firing from tank ranges. For 11 years, I was a range officer . . . ."). As such, the Board has previously conceded exposure to acoustic trauma. See January 2019 Board Remand ("The Board concedes the Veteran was exposed to excessive noise in the course of performing the duties associated with his MOS."). The Board notes that, in this case, the Veteran was granted service connection for left ear hearing loss based on a nexus opinion that connects the Veteran's current left ear hearing loss to an injury during his service in the New Jersey Army National Guard. While the examiner did not specify the exact date on which the injury occurred, the Veteran did have periods in INACTURA and ACDUTRA consistently during the years in question and the facts that the examiner relied on in the opinion and rationale are almost identical to those for the right ear. Because service connection was granted based on an injury that occurred during a period of inactive duty for training (INACDUTRA) or active duty for training (ACDUTRA), for purposes of the right ear hearing loss claim, that period will be treated as a period of active service. Regarding a nexus between a current disability and an injury in service, there is evidence for and against the claim. As described in the Board's prior remands, the July 2015 and September 2019 VA examiners provided negative opinions for both left and right ear hearing loss; however, these opinions did not contain adequate rationales and disregarded lay evidence, relying primarily on the absence of treatment records or hearing loss that meets the requirements of 38 C.F.R. § 3.385 during the Veteran's initial period of active service. See January 2019 Board Remand, at 2; October 2021 Board Remand, at 2. The December 2021 VA examiner also opined that it was less likely than not (less than 50 percent probability) that the Veteran's claimed right ear hearing loss was caused by in-service injury, but the rationale for this opinion is also inadequate. Regarding the right ear hearing loss, the examiner failed to fully address the evidence from the Veteran's periods of INACDUTRA or ACDUTRA during service in the Army National Guard. Moreover, the examiner appeared to apply an incorrect legal standard, stating that "[a]lthough . . . excessive noise exposure on active duty is conceded, there must be a nexus of auditory damage on active duty to relate current hearing loss to noise on active duty." The examiner then added: "There is objective evidence against a nexus in this case." See December 2021 VA exam [emphasis added]. Though poorly worded, the examiner argues that the Veteran must have been found to have hearing impairment while in service for a nexus to exist. No such requirement exists. Finally, the examiner's rationale for providing a positive opinion on left ear hearing loss appears to be inconsistent with the examiner's rationale for providing a negative opinion on the Veteran's right ear hearing loss. The examiner found that the Veteran's left ear hearing loss was more likely than not (more than 50 percent probability) caused by the Veteran's conceded in-service acoustic trauma. The rationale was that there was a positive threshold shift in the puretone thresholds measured in the left ear at 3,000 Hz in the Veteran's August 1988 in-service audiogram. The examiner found the shift to be: "indicative of possible damage to the auditory system from conceded noise on National Guard service duty," adding, "objective evidence supports a nexus of auditory damage in this case." See December 2021 VA Exam. It is not entirely clear which prior audiogram results were used as the baseline for determining whether there was a threshold shift, but the examiner cited to the April 1976, July 1980, and August 1980 audiogram results. The examiner noted that the Veteran's MOS had a high probability of hazardous noise exposure and that the "relationship between noise exposure, auditory damage and hearing loss is well documented in the research and the objective evidence supports a nexus of auditory damage in this case." Looking at the audiogram results of record, the Veteran's hearing threshold at 3,000 Hz was at 5 dB for both ears in his earliest, February 1974, audiogram, taken during his separation examination. The April 1976 audiogram did not test the Veteran's hearing at 3000 Hz in either ear, and the July 1980 audiogram showed a puretone threshold of 10 dB in the right ear and 5 dB in the left ear at 3000 Hz. The August 1988 audiogram showed a puretone threshold of 25 dB in the right ear and 30 dB in the left ear at 3000 Hz. Between the July 1980 audiogram and the August 1988 audiogram, the right ear puretone threshold at 3000 Hz changed from 10 to 25 dB, a shift of 15 dB. The left ear changed from 5 to 30 dB, a shift of 25 dB. Based on the above, it appears that both ears demonstrated a threshold shift at 3000 Hz. Moreover, subsequent VA examinations found that the Veteran's hearing continued to worsen in both ears since the August 1988 audiogram. The July 2015 VA audiogram showed puretone thresholds of 40 dB at 3000 Hz in both ears and the December 2021 VA audiogram showed a puretone threshold of 45 dB in the left ear and 50 dB in the right ear at 3000 Hz. The puretone thresholds and trajectory of the Veteran's right ear hearing loss has tracked that of his left ear hearing loss over time, and both ears experienced contemporaneous noise exposure. Given the above, it is unclear why the December VA examiner would opine that only the left ear sustained a positive permanent threshold shift based on the changes at 3000 Hz during the Veteran's audiogram testing during his service in the Army National Guard. It appears that the sole basis for the difference between providing a positive opinion for service connection for the left ear and a negative opinion for the right ear was a 10 dB difference in the dB threshold shift between the 1980 and 1988 audiograms. The Veteran provided a key argument in his January 2022 Informal Hearing Presentation: "It is inconceivable to conclude that acoustic and traumatic experiences, and exposure to noise pollution of this level, affected the hearing of only one ear and not the other." The Board agrees with the logic of this statement, especially in light of a close analysis of the aforementioned audiometric puretone threshold results at 3,000 Hz over a nearly fifty-year span (1974 2021) in both ears. Given the above facts, the logic of the most recent, December 2021, VA examiner's positive opinion for the Veteran's left ear hearing loss used to grant service connection for the left ear also appears to apply to the evidence and circumstances that apply to the Veteran's right ear hearing loss. Further, there is no competent, credible, and probative evidence to the contrary. As such, regarding the nexus element, the Board will apply the benefit of the doubt with respect to nexus between the Veteran's right ear hearing loss and his service in the Army National Guard. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Accordingly, as each required element has been substantiated, the criteria for entitlement to service connection for right ear hearing loss are met, and the appeal is granted. Marissa Caylor Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Saumur, 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.