Citation Nr: 1330330	
Decision Date: 09/20/13    Archive Date: 09/25/13

DOCKET NO.  10-47 988	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

Entitlement to service connection for right ear hearing loss.  


REPRESENTATION

Appellant represented by:	West Virginia Division of Veterans' Affairs


ATTORNEY FOR THE BOARD

Dan Brook, Counsel







INTRODUCTION

The Veteran served on active duty from September 1972 to May 1973.  

This appeal to the Board of Veterans' Appeals (Board) arises from an April 2010 rating decision of the Roanoke Regional Office (RO) of the Department of Veterans' Affairs (VA).  In January 2013, the Board remanded the case for further development.  In a May 2013 rating decision, the Appeals Management Center (AMC) granted service connection for left ear hearing loss and tinnitus. 


FINDING OF FACT

The Veteran's current right ear hearing loss is shown to be at least as likely as not related to noise exposure in service.   


CONCLUSION OF LAW

Affording the Veteran the benefit of the doubt, the criteria for entitlement to service connection for right ear hearing loss are met.  38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.385 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) includes enhanced duties to notify and assist claimants for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a).

Given the favorable disposition of the claim for service connection for right hearing loss, the Board finds that all notification and development action needed to fairly adjudicate this claim has been accomplished.

II.  Analysis

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  

Specific to claims for service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002).  A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102.  When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must be against the claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996).

In the instant case, the Veteran was found to have a right ear speech discrimination score of  74 percent during April 2010 and  February 2013 VA audiological evaluations, thus establishing a current right ear hearing loss disability by VA standards.  VA has also conceded that the Veteran had noise exposure during service pursuant to his duties as a Boatswain's mate.  Additionally, during the February 2013 VA examination, the examining audiologist affirmatively found it at least as likely as not that the Veteran's current right ear hearing loss was caused by or a result of noise exposure in military service.  Thus, affording the Veteran the benefit of the doubt concerning a nexus between service and current right ear hearing loss, all the necessary criteria for an award of service connection for right ear hearing loss have been met.  The Board notes that the February 2013 VA examiner did also find that the Veteran's right ear hearing loss pre-existed service and was not aggravated beyond its natural progression during service.  However, given that hearing in the Veteran's right ear was found to be within normal limits during his September 1972 entrance examination, and given there is no other evidence of record to suggest that the Veteran had a pre-existing right ear hearing loss, the Board does not assign any probative value to this conclusion.

In sum, as current right ear hearing loss, noise exposure in service, and a relationship between the two are all reasonably established, service connection for right ear hearing loss is warranted.     


ORDER

Service connection for right ear hearing loss is granted.  



____________________________________________
P. M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs