Citation Nr: 23058905 Decision Date: 11/01/23 Archive Date: 11/01/23 DOCKET NO. 17-28 829A DATE: November 1, 2023 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served in the Air National Guard from August 1973 to August 1976. She had a period of active duty for training (ACDUTRA) from August 1973 to December 1973. She also served in the Army Reserve from May 1977 to May 1984. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2017 rating decision by a Department of Veterans Affairs Regional Office (RO). In March 2021, the Veteran testified at a Board hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. By way of history, in a June 2018 Board Decision this matter was remanded for VA to issue a statement of the case (SOC). Following the Board hearing, this matter was remanded in November 2021 to determine if the Veteran had a hearing loss disability for VA purposes. Following further development, the Board denied the claim on appeal in a February 2022 Decision. The Veteran appealed the Decision to the U.S. Court of Appeals for Veterans Claims (Court). In a May 2023 Memorandum Decision, the Court vacated the Board's Decision and remanded for readjudication. In pertinent part, the Memorandum Decision found the Board failed to notify the Veteran that it had planned to reverse a previous finding that the Veteran had hearing loss based on a June 2018 VA expert medical opinion. Specifically, in granting service connection for tinnitus, the Court stated that the Board concluded that her tinnitus was due to hearing loss sustained as a result of in-service noise exposure. The Court found the Board treated the June 2018 expert medical opinion differently in the February 2022 Decision in concluding the Veteran did not have a hearing loss disability for VA purposes. Entitlement to service connection for bilateral hearing loss is remanded. With regard to the claim on appeal, the Veteran is notified that the Board has not reversed any previous finding. In the June 2018 Decision, the Board determined that all three elements necessary to establish service connection for tinnitus had been met. This included a finding that a June 2018 expert medical opinion "demonstrates that it is at least as likely as not that her tinnitus is due to hearing loss sustained as a result of noise exposure during a period of service." With regard to hearing loss, the expert medical opinion noted that it was more likely than not that noise exposure experienced by the Veteran had resulted in "hidden hearing loss," which was described as hearing loss undetectable by audiometric testing. The Board found the VHA expert's opinion highly probative as it contained clear conclusions with supporting data and a reasoned medical explanation connecting the two (i.e., connecting tinnitus with in-service noise exposure). The Board made no finding that the Veteran had a hearing loss disability for VA purposes. Instead, as explained by the Board during the March 2021 hearing, claims for hearing loss differ from other types of service connection claims. The Board explained that in order to be qualified as disability for VA purposes, certain audiometric diagnostic criteria need to be met. In a November 2021 Decision, the Board addressed the evidence of record including the June 2018 expert medical opinion. However, the Board found that the evidence did not currently show the Veteran had a hearing loss disability for VA purposes. Therefore, the matter was remanded to obtain a VA examination to specifically determine whether the Veteran currently had a hearing loss disability pursuant to 38 C.F.R. § 3.385. The subsequent December 2021 VA examination did not reveal a hearing loss disability for VA purposes, and this claim was denied on that basis. To reiterate, with respect to hearing loss, VA has specifically defined what is meant by a "disability" for the purposes of service connection: "[I]mpaired hearing will be considered to be a disability 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 threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Therefore, while an appellant may have a medical diagnosis of hearing loss, such as hearing loss at 6000 Hertz or greater, or, in this case, a diagnosis for "hidden hearing loss," if diagnostic testing does not meet certain auditory or speech recognition thresholds pursuant to 38 C.F.R. § 3.385, it is not considered a disability for VA purposes. The Board addressed this fact in the February 2022 Decision, as well as the fact that the June 2018 expert medical opinion did not conclude that the regulatory level of hearing loss had been met. Therefore, for clarification purposes, the Veteran is advised that the Board finds the June 2018 VA medical expert opinion shows a diagnosis for hidden hearing loss. The Board does not find that the evidence of record reflects that the Veteran currently meets the regulatory standard for a hearing loss disability for VA purposes, a necessary element for granting service connection. Lastly, with regard to the June 2018 VHA expert's opinion, the Board does not find the conclusions reached to be the most probative evidence of record with regard to entitlement to service connection for bilateral hearing loss. However, in consideration that the claims file does not contain any recent treatment records, this matter is remanded to obtain any outstanding medical records. The matter is REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the file from her VA treatment facilities, and all private treatment records not already associated with the file. 2. Then, the AOJ must readjudicate the issue on appeal. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lamb, Christopher 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.