Citation Nr: 22018974 Decision Date: 03/31/22 Archive Date: 03/31/22 DOCKET NO. 19-20 231 DATE: March 31, 2022 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran's preexisting bilateral hearing loss was aggravated beyond the natural progression of the disorder during active service. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1113, 5107 (b); 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1967 to May 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In the October 2018 Notice of Disagreement, the Veteran elected to only appeal the issue of entitlement to service connection for bilateral hearing loss. In his July 2019 VA Form 9, the Veteran requested the opportunity to present testimony at a hearing before the Board. In a January 2022 statement, he requested to withdraw his hearing request. Accordingly, his hearing request is withdrawn. 38 C.F.R. § 20.704 (e). Entitlement to service connection for bilateral hearing loss. Service connection will be granted if the evidence demonstrates that a disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). When considering whether lay evidence may be competent, the Board must determine, on a case-by-case basis, whether the Veteran's disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue."). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran contends that his bilateral hearing loss was due to active service. For the purposes of applying the laws administered by VA, 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 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 threshold for normal hearing is 0 to 20 decibels. The Veteran's post-service treatment records contain audiological examinations showing that he has bilateral hearing loss for VA purposes. However, the Board finds that the Veteran's bilateral hearing loss preexisted service and was "noted" upon entrance into service. The Veteran's January 1967 enlistment examination shows that the Veteran had mild bilateral hearing loss. The audiometric findings at service entrance are demonstrative of bilateral hearing loss that meets the requirement of hearing loss disability under 38 C.F.R. § 3.385. Therefore, a preexisting disability of bilateral hearing loss was "noted" upon entry into active service. 38 C.F.R. § 3.304 (b); McKinney v. McDonald, 28 Vet. App. 15 (2016) (the term "defect" should be narrowly interpreted so that it does not encompass a level of hearing impairment that is not considered a "disability" under 38 C.F.R. § 3.385). As bilateral hearing loss was noted at service entrance, the presumption of soundness at entry into active service does not attach. See 38 U.S.C. § 1111. Because the Veteran's preexisting bilateral hearing loss was noted at the time of entry into service, service connection for bilateral hearing loss may be granted only if it is shown that the hearing loss disability worsened in severity beyond its natural progression during service (i.e., was aggravated by service). 38 U.S.C. § 1153; 38 C.F.R. § 3.306. The Veteran's enlistment examination was performed in January 1967 and his separation examination was performed in March 1969; hearing tests were performed, and auditory thresholds were measured and recorded during each examination. However, it is unclear whether those thresholds were measured using American Standards Association (ASA) standards or International Standards Organization-American National Standards Institute (ISO-ANSI) standards. Historically, when interpreting audiometric data from service treatment records, it is important to note that service departments changed from using ASA standards to using 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 it relates to VA examinations and VA records, audiological reports were routinely converted from ISO-ANSI results to ASA standards until the end of 1975 because the regulatory standard for evaluating hearing loss was not changed to require ISO-ANSI standards until September 9, 1975. In this case, because the Veteran's enlistment and separation examinations and accompanying hearing tests were performed between January 1, 1967 and December 31, 1970, and the report of those examinations do not state which standards were used, it is unclear whether the auditory thresholds reported on the reports of the examinations were recorded using ASA standards or ISO-ANSI standards. Thus, the recorded metrics are considered under both standards, relying on the standards/unit measurements most favorable to the Veteran's appeal. The Veteran was afforded a VA hearing loss examination in June 2018. Acoustic trauma was conceded with a moderate probability. When considering the Veteran's military noise exposure, the examiner noted that he was an Army Motor Transport Operator in Vietnam; performed engine/truck repair; frequently drove into combat situations; and was exposed to medium class weapons, small arms, machine guns, 60 and 80 caliber guns, grenade launchers, and helicopters. Yet, the examiner noted that hearing loss existed prior to service and had not been aggravated beyond normal progression in military service, as there was no significant threshold shift noted between the entrance and exit examinations. The examiner, however, did not indicate which units of measurement those thresholds were in, nor whether conversion was necessary, or performed, when considering whether there was a significant threshold shift during service. As this information was not provided, the Board finds the June 2018 VA medical opinion to be of little probative weight. Notably, the exit examination showed significant improvement in the Veteran's measured auditory thresholds. Again, the Board finds the exit examination measurements to be of little probative weight, as it is inconsistent with the evidence of record. For example, prior to active-duty service the Veteran worked in carpentry and had mild hearing loss. During service, the Veteran encountered significant noise exposure and reported trouble with his ears and hearing loss on his exit examination report. Consequently, it is puzzling to see an improvement in the Veteran's hearing. (Continued on the next page) The Veteran is considered competent to report experiencing increased hearing loss during active military service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Moreover, the Veteran's MOS, service history, and current diagnoses are consistent with a finding that his bilateral hearing disability was aggravated beyond normal progression as a result of service. 38 C.F.R. § 3.303. In considering the evidence discussed above, the Board finds that the evidence is at least evenly balanced as to whether the Veteran's bilateral hearing disability was aggravated beyond normal progression as a result of service. Resolving reasonable doubt in favor of the Veteran, entitlement to service connection for bilateral hearing loss is warranted. 38 U.S.C. § 5107. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laura Cochran, 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.