HEARING LOSS

Summary

The veteran, who served in the Army from March 1966 to August 1966, appeals the denial of service connection for bilateral hearing loss. The veteran claims his hearing loss is due to noise exposure from serving in a mortar unit and that he received no hearing protection during service. He reports experiencing hearing loss since his military service. The Board reviewed the evidence, including VA examinations from February and July 2020, which opined that the veteran's hearing loss was less likely than not related to service due to a lack of significant threshold shifts in service treatment records and the unlikelihood of delayed onset of noise-induced hearing loss. However, the Board found these opinions failed to address the veteran's credible statements about continuous hearing loss symptoms since service and the lack of hearing protection provided. The Board also considered two private medical opinions, one from an audiologist and one from a hearing instrument specialist, which attributed the veteran's bilateral hearing loss to significant artillery noise exposure during service and found it at least as likely as not caused by military service. Weighing the evidence, the Board found the evidence in approximate balance, leading it to apply the benefit of the doubt in favor of the veteran. Consequently, service connection for bilateral hearing loss was granted.

Rationale

Veteran's credible statements of continuous hearing loss symptoms since service.; Lack of hearing protection provided during military service.; Favorable private medical opinions attributing hearing loss to noise exposure.; VA examiners' opinions found less likely than not related to service.; Evidence weighed equally, applying benefit of the doubt.

Full Decision Text

Citation Nr: A22014602
Decision Date: 07/29/22	Archive Date: 07/29/22

DOCKET NO. 210625-168367
DATE: July 29, 2022

ORDER

Service connection for bilateral hearing loss is granted.

FINDING OF FACT

Resolving reasonable doubt in favor of the Veteran, his bilateral hearing loss is shown to be etiologically related to service.

CONCLUSION OF LAW

The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1157; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active duty service in the Army from March 1966 to August 1966.  

A claim for entitlement to service connection for bilateral hearing loss was made in December 2019. A February 2020 rating decision denied service connection for bilateral hearing loss. In April 2020, the Veteran submitted a Decision Review Request: Supplemental Claim for the denial of service connection for bilateral hearing loss. An October 2020 rating decision confirmed and continued the denial of service connection for bilateral hearing loss. A Decision Review Request: Higher-Level Review for the issue of entitlement to service connection for bilateral hearing loss was received in October 2020. In the February 2021 rating decision, a duty to assist error was identified during the Higher Level Review for bilateral hearing loss and a return was issued based on a failure to send the Veteran the required notification letter that a negative response DD Form 2983 had been received for the Veteran's National Guard records. The notification letter was sent to the Veteran and in March 2021, a rating decision was issue denying service connection for bilateral hearing loss. The Veteran disagreed with the decision. 

In the June 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing Lane. A hearing was scheduled in March 2022. However, in a correspondence received by VA that same month, the Veteran indicated he would not be able to attend the hearing due to his health and requested a direct review of his claim based on the evidence of record. He further indicated he had no new evidence to submit.    

Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative within 90 days following receipt of the withdrawal of the hearing request. 38 C.F.R. § 20.302(b).

Service Connection

Service connection may be established for a disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To prevail on the issue of service connection, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247 (1999).

Certain chronic diseases, such as organic diseases of the nervous system (including sensorineural hearing loss) are subject to presumptive service connection if they manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). 

For the showing of a chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time of service. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Hearing loss disability is defined by regulation. For the purpose 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, 
 discharge is required to support the claim. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Hearing loss disability is defined by regulation. For the purpose 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, 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 absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for a hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

Lastly, the Board acknowledges the AOJ found the Veteran's complete STRs were unavailable for review and that any further attempts to obtain such records would be futile. When STRs are missing, there is a heightened duty on the Board to explain its findings and conclusions. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, case law does not establish a heightened "benefit of the doubt," only a heightened duty of the Board to consider the applicability of the benefit of the doubt, to assist the claimant in developing a claim, and to explain its decision when a veteran's medical records have been lost. Ussery v. Brown, 8 Vet. App. 64, 68 (1995). Similarly, case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all the evidence that may be favorable to a claimant. Russo v. Brown, 9 Vet. App. 46, 50-51 (1996).

After considering all information including the lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

Entitlement to service connection for bilateral hearing loss

The Veteran contends that he incurred hearing loss during active service due to noise exposure while serving in a mortar unit and was never provided hearing protection. Further, he reports suffering from hearing loss since his time in the service. See April 2020 statement.

After a review of the record, the Board finds it is reasonably shown that such bilateral hearing loss is related to his service. In this regard, the Veteran is shown to have a current bilateral hearing disability under 38 C.F.R. § 3.385 pursuant to the February 2020 and July 2020 VA examinations. Additionally, it is also established that the Veteran was exposed to noise trauma in service based on his service in the Army National Guard Infantry. Therefore, the remaining question to be addressed is whether the Veteran's current bilateral hearing loss disability is caused by or related to his noise trauma in service.

During the February 2020 VA examination, the examiner opined the Veteran's bilateral hearing loss was less likely as not caused by or a result of his military noise exposure. In support of that opinion, the examiner highlighted the fact that there was not significant shift in thresholds from induction to discharge shown in the Veteran's records. The examiner explained, quoting the Institute of Medicine that current science indicates that "understanding the mechanisms and processes involved in the
0 VA examinations. Additionally, it is also established that the Veteran was exposed to noise trauma in service based on his service in the Army National Guard Infantry. Therefore, the remaining question to be addressed is whether the Veteran's current bilateral hearing loss disability is caused by or related to his noise trauma in service.

During the February 2020 VA examination, the examiner opined the Veteran's bilateral hearing loss was less likely as not caused by or a result of his military noise exposure. In support of that opinion, the examiner highlighted the fact that there was not significant shift in thresholds from induction to discharge shown in the Veteran's records. The examiner explained, quoting the Institute of Medicine that current science indicates that "understanding the mechanisms and processes involved in the recovery from noise exposure suggests that a delay of many years in the onset of noise-induced hearing loss following an earlier noise exposure is extremely unlikely." Additionally, the examiner further elaborated that "evidence from laboratory studies in humans and animals is sufficient to conclude that the most pronounced effects of a given noise exposure on pure-tone thresholds are measurable immediately following the exposure." (Institute of Medicine).  As a result, the examiner concluded, given the Veteran's normal hearing at discharge and no significant shift in thresholds from induction to discharge, hearing impairment was less likely as not caused by or aggravated by military noise exposure.

Additionally, a July 2020 VA examiner also opined that the Veteran's bilateral hearing loss was less likely as not caused by his military noise exposure. In support of that opinion, the examiner indicated there was no significant permanent shift in hearing thresholds beyond test variability from entrance to separation, which is objective evidence of no permanent auditory damage on active duty from conceded noise. There was no report of complaint/treatment for hearing decrease in service treatment records or at separation. Although noise exposure is conceded and the relationship of noise, auditory damage and hearing loss is well-established, auditory damage and hearing loss are no conceded based on noise alone. There must be a nexus of auditory damage to relate current hearing loss to military noise and not another etiology. Therefore, the examiner concluded that the evidence was against a nexus and it was less likely than not that the hearing loss was related to the Veteran's military service.

However, the examiners failed to address the competent and credible statements from the Veteran regarding experiencing hearing loss since his time in service, as well as the lack of hearing protection provided to the Veteran at the time of his military service to explain his present hearing loss. The examiners also did not provide an alternative reasoning or causation for the Veteran's present hearing loss.

Contrary to the VA examiners' conclusions, the record includes two favorable private medical opinions, which find the Veteran's current bilateral hearing loss is attributed to noise exposure during his military service.  In a private medical statement received by VA in December 2019, C.M., AU.D., CCC-A noted the Veteran's contention of exposure to significant noise during his service and that the Veteran's audiometric results revealed moderate sloping to profound sensorineural hearing loss bilaterally with speech discrimination scores being poor in the right and left ears, 36 percent and 64 percent respectively. The private provider opined the Veteran's bilateral hearing loss is at least as likely as not caused by or a result of his time in the military, having been exposed to significant artillery noise. In support of that opinion, the provider explained that significant noise exposure has been shown to result in high-frequency sensorineural hearing loss, which was shown in the Veteran's test results.

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A private medical statement by C.E., HIS, COHC, received by VA in April 2020, indicated based on the Veteran's report of lack of hearing protection used during live fire exercises in a mortar unit during his military service, the Veteran's current hearing loss is most likely caused by or a result of his military service.

When viewing the private opinions along with the Veteran's reports of continuity of hearing loss symptomatology, the Board finds the evidence of record weighs at least equally in favor and against a finding that the Veteran's bilateral hearing loss is related to his service. Therefore, giving the Veteran the benefit of the doubt, the Board finds that the nexus element for his bilateral hearing loss is met.  See 38 C.F.R. § 3.303(b), Charles v. Principi, 16 Vet. App. 370, 374-75 (2002), Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for bilateral hearing loss is warranted.

 

 

A.P. Armstrong

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K. Churchwell, 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
 doubt, the Board finds that the nexus element for his bilateral hearing loss is met.  See 38 C.F.R. § 3.303(b), Charles v. Principi, 16 Vet. App. 370, 374-75 (2002), Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for bilateral hearing loss is warranted.

 

 

A.P. Armstrong

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K. Churchwell, 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.