HEARING LOSS

Z. SAHRAIE · 2022 · Case ID: A22021760

MIXED

Summary

The Veteran served in the United States Army from September 1987 to April 2000. The Veteran appealed the denial of service connection for bilateral hearing loss and left knee osteoarthritis. The Board granted service connection for left ear hearing loss, finding it was at least as likely as not related to in-service acoustic trauma. The Board noted the Veteran's credible account of noise exposure, including gunfire and heavy equipment use without ear protection, supported by service records and a private audiological examination. The Board also found hazardous noise exposure conceded due to the Veteran's service connection for tinnitus. The Board granted the appeal to readjudicate the left knee osteoarthritis claim, as new evidence, specifically a statement about a May 2000 VA examination noting a meniscus issue and potential future problems, was submitted. The Board remanded the claim for right ear hearing loss due to conflicting audiological examinations and a pre-decisional duty to assist error. The left knee osteoarthritis claim was also remanded because the prior VA opinion was conclusory, failed to address secondary service connection to the Veteran's service-connected right knee injury and low back injury, and constituted a pre-decisional duty to assist error.

Rationale

Left ear hearing loss confirmed by VA and private audiological exams.; Service records and credible account of noise exposure support in-service acoustic trauma.; Hazardous noise exposure conceded due to service connection for tinnitus.; Evidence at least in equipoise, benefit of doubt applied.

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

200302-67767

Full Decision Text

Citation Nr: A22021760
Decision Date: 10/27/22 Archive Date: 10/27/22

DOCKET NO. 200302-67767
DATE: October 27, 2022

ORDER

1. Entitlement to service connection for left ear hearing loss is granted.

2. New and relevant evidence having been introduced, the appeal to readjudicate the claim for service connection for left knee osteoarthritis is granted.

REMANDED

1. Entitlement to service connection for right ear hearing loss is remanded.

2. Entitlement to service connection for left knee osteoarthritis is remanded.

FINDING OF FACT

1. A left ear hearing loss disability was manifested during the Veteran's service, and such disability is shown to be related to his service.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for left ear hearing loss have been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385.

2. New and relevant evidence has been received, and the claim of service connection for left knee osteoarthritis may be readjudicated. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156.

REASONS AND BASES FOR FINDING AND CONCLUSIONS

The Veteran served on active duty in the United States Army from September 1987 to April 2000.

The rating decisions on appeal were issued in March 2019 and December 2019 and constitute initial decisions; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies.

By way of background, in February 2019, the Veteran filed a claim for bilateral hearing loss. In a March 2019 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) denied the Veteran's service connection claim for bilateral hearing loss. In October 2019, the Veteran filed a claim for left knee osteoarthritis. In a December 2019 rating decision, the VA RO denied the Veteran's service connection claim for left knee osteoarthritis. In March 2020, the Veteran filed a Notice of Disagreement about the denials of his claims of bilateral hearing loss and left knee osteoarthritis.

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 with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303.

Service Connection

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. To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) 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 the so-called 'nexus' requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010).

Certain chronic diseases, such as sensorineural hearing loss, may be presumed to have been incurred during service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. If a condition listed as a chronic disease in § 3.309(a) is noted during service but is either shown not to be chronic or the diagnosis could be legitimately questioned, then a showing of continuity of related symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

1. Service connection
the diagnosis could be legitimately questioned, then a showing of continuity of related symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

1. Service connection for left ear hearing loss is granted.

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). Hearing loss disability is defined by regulation. For the purpose of applying the laws administered by VA, impaired hearing is 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 question for the Board is whether the Veteran has a left ear hearing loss disability for VA purposes had its onset in service with continuity ever since, manifested to a compensable degree within the applicable presumptive period following service, or whether he has a left ear hearing loss disability which is otherwise shown to be etiologically related to an in-service injury, event, or disease.

On the authorized audiological evaluation in January 2019, pure tone thresholds, in decibels, were as follows:

HERTZ

500 1000 2000 3000 4000

RIGHT 20 20 20 30 40

LEFT 10 20 30 40 40

There was no speech recognition test administered for either ear.

On the authorized audiological evaluation in March 2019, pure tone thresholds, in decibels, were as follows:

HERTZ

500 1000 2000 3000 4000

RIGHT 15 20 20 20 30

LEFT 15 20 30 30 30

Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 100 in the left ear.

In the September 2019 Rating Decision on appeal, the RO made favorable findings that the Veteran has a current diagnosis of hearing loss in his left ear based on his March 2019 VA examination and that he had a high probability of hazardous noise exposure in service (i.e., a qualifying event, injury, or disease had its onset during the Veteran's service) based on his military occupational specialty of multichannel transmission systems. Under the AMA, the Board is bound by favorable findings of the RO in the absence of clear and unmistakable error. 38 C.F.R. § 3.104(c).

Therefore, what remains to substantiate the claim for service connection is competent evidence that the left ear hearing loss disability is etiologically related to the Veteran's service and acknowledged hazardous noise exposure therein.

The Veteran contends that his left ear hearing loss has been caused by in-service acoustic trauma. Specifically, the Veteran has asserted that his service exposed him to gunfire from weapons and heavy equipment and that he was not thus exposed in post-service civilian life. Thus, the Veteran believes his current left hearing loss to be attributable to in-service hazardous noise exposure. A review of service records and post-service medical records in this case supports the Veteran's statements in this respect, and thus the Board regards them as credible. Additionally, the Board finds hazardous noise exposure is conceded based on the Veteran's service connection for tinnitus.

Further, the medical record shows left ear hearing loss, confirmed by March 2019 VA audiological examination report and January 2019 private audiological examination report. Notes associated with the former confirm the Veteran had a history of noise exposure, "was around gun/cannon fire," "did not have ear protection." These statements, coupled with the Veteran's credible account of the progression of his left ear hearing loss since separation, convinces the Board that current left
. A review of service records and post-service medical records in this case supports the Veteran's statements in this respect, and thus the Board regards them as credible. Additionally, the Board finds hazardous noise exposure is conceded based on the Veteran's service connection for tinnitus.

Further, the medical record shows left ear hearing loss, confirmed by March 2019 VA audiological examination report and January 2019 private audiological examination report. Notes associated with the former confirm the Veteran had a history of noise exposure, "was around gun/cannon fire," "did not have ear protection." These statements, coupled with the Veteran's credible account of the progression of his left ear hearing loss since separation, convinces the Board that current left ear hearing loss in this case is at least as likely as not related to in-service acoustic trauma. Accordingly, the evidence in this matter being at least in equipoise, the appeal for service connection for left ear hearing loss is granted.

2. Whether new and relevant evidence has been introduced to readjudicate a claim of service for left knee osteoarthritis.

The Veteran's claim of service connection for left knee osteoarthritis was denied in a December 2019 rating decision on the basis that the Veteran's left knee osteoarthritis was not linked to service.

Since this denial, the Veteran submitted a statement that in May 2000, he was given a VA examination where the doctor said that his left knee meniscus was at 40 percent and said that the Veteran may have issues later in life. See March 2020 Correspondence. This evidence is relevant to the claim and is new because it could show that the Veteran had a left knee condition within one year of his service and was not previously considered in December 2019. Therefore, readjudication of that claim is warranted.

REASONS FOR REMAND

1. Entitlement to service connection for right ear hearing loss is remanded.

The issue of entitlement to service connection for claimed right ear hearing loss disability is remanded for a new audiological examination because of conflicting audiological examinations, and the failure to resolve the ambiguity frustrates the Board's review of this matter and constitutes a pre-decisional duty to assist error. The January 2019 private audiological examination appears to show right ear hearing loss. The March 2019 VA opinion does not reconcile the January 2019 private audiological examination report. As the January 2019 audiological examination shows potential right ear hearing loss, the Board finds that a remand is necessary to obtain a new audiological examination.

2. Entitlement to service connection for left knee osteoarthritis is remanded.

The VA examiner with whom the Veteran met in November 2019 in relation to his claim for service connection for left foot osteoarthritis indicated only that the claimed condition was typical age-related degeneration, contributed by obesity, and based on studies evidence have shown that one extremity joint does not affect other extremity joints. The Board finds the November 2019 opinion is conclusory. There is no additional reasoning associated with this negative etiological opinion, and no indication that consideration was given to the Veteran's service connection for right knee injury and his low back injury and the possibility that the Veteran's claim is a secondary service connection basis of his previous service-connected injuries. The failure to obtain an adequate VA examination constitutes a pre-decisional duty to assist error. On remand, a new VA examination of the Veteran's left knee osteoarthritis must be conducted and adequate medical opinion as to etiology must be obtained.

The matters are REMANDED for the following actions:

1. Schedule the Veteran for an audiology examination by an appropriate clinician to determine the nature and etiology of any right ear hearing loss. Ensure that notice of the examination is sent to the proper address for the Veteran and that evidence of the mailed notice is in the file. The examiner must review the claims file and is asked to provide a response to the following:

(a) Does the Veteran have a right ear hearing loss disability according to 38 C.F.R. § 3.385?

If so, is the hearing loss disability at least as likely as not (an approximate balance of positive and negative evidence) related to his active service, to include hazardous noise exposure therein?

The examiner must provide a detailed rationale for any opinion. The Veteran and other lay persons are competent to report on his history of observable symptoms and their reports must be considered. If the examiner rejects their lay reports, he or she must so state and explain why. An absence of contemporaneous medical treatment, standing alone, cannot be the basis for rejecting the lay reports.

If so, is the hearing loss disability at least as likely as not (an approximate balance of positive and negative evidence) related to his active service, to include hazardous noise exposure therein?

Additionally, in providing the requested opinion, consider the Veteran's description of his symptoms in-service and post-service. If there is any medical reason to accept or reject the proposition that the Veteran's reported symptoms in-service and thereafter represent the onset of his current disability, this should be noted.

2. Contact the Houston VAMC and request all medical records from January 2000 to present of the Veteran that are not already associated with his claims file, specifically a May 2000 VA examination. If the records are missing or no longer available, request the Houston VAMC to provide a written formal finding indicating that those records are not available, and notify the Veteran of the unavailability of such records.

Then, schedule the Veteran for a VA examination to explore the etiology of his left knee osteoarthritis. All indicated tests and studies should be conducted and all clinical findings reported in detail. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request.

The examiner should state whether the left knee osteoarthritis is at least as likely as not (an approximate balance of positive and negative evidence) that the condition began in-service or is otherwise related to service.

The examiner should state whether the left knee osteoarthritis is at least as likely as not (an approximate balance of positive and negative evidence) that the condition has been caused by the service-connected right knee injury.

Z. Sahraie

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Timothy Forneris

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.

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