Citation Nr: 1339064 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 09-13 567 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for hearing loss. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1960 to December 1980. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision of the Columbia, South Carolina, Department of Veterans Affairs (VA) Regional Office (RO), which in pertinent part, denied service connection for bilateral hearing loss. During the course of the appeal, the Veteran's claims file was permanently transferred to the RO in Atlanta, Georgia, and that RO now has jurisdiction over the claim on appeal. The Board remanded the claim in January 2012 in order to give the Veteran the opportunity to testify before a member of the Board. The Veteran testified before the undersigned Veterans Law Judge in June 2013. A transcript is included in the Virtual VA claims file. The issue of entitlement to service connection for tinnitus has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT The evidence for, and the evidence against, the Veteran's claim for service connection for a hearing loss disability is in relative equipoise. CONCLUSION OF LAW Resolving doubt in favor of the Veteran, service connection for bilateral hearing loss is warranted. See 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION A. Duty to Assist The Veteran's claim of entitlement to service connection for bilateral hearing loss is granted, as explained below. As such, the Board finds that any error under the VCAA with regard to the Veteran's claim is moot. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). B. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty or active duty for training. 38 U.S.C.A. §§ 101, 106, 1110; 38 C.F.R. §§ 3.6, 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran has reported that during his active duty he was subjected acoustic trauma military artillery. The Veteran's DD-214 shows that his military occupational specialty (MOS) was Construction Engineering Supervisor for 12 years, which is consistent with his report of noise exposure. A VA audiological examination report dated in August 2006 shows bilateral hearing loss disability consistent with 38 C.F.R. § 3.385. August 2006 and September 2012 VA examiners opined that the Veteran's hearing loss was more likely caused by post-service noise exposure. The examiners noted that as the Veteran reported a gradual onset of hearing loss which became more noticeable 12 years after separating from the Army, his current hearing loss is more likely due to presbycusis and noise exposure after his military service. In a February 2012 letter, Dr. L.M., a specialist in otolaryngology, reported that the Veteran suffers from presbycusis. She noted that the Veteran had reported his in-service noise exposure to her and that he felt it began in service. She concluded that it was her clinical opinion that the exposure to high decibel noise in service is more likely than not the cause of the Veteran's sensorineural hearing loss, and is the basis for his current degree of presbycusis. Although there is evidence for and against the claim, the Board finds that there is an approximate balance of positive and negative evidence regarding whether the Veteran's hearing loss was incurred in or a result of active service. Specifically, the VA opinions are based on a review of the record and offer a reasoned basis for the conclusion. While the private opinion does not indicate whether the full record was reviewed, it is clear the specialist was aware of the Veteran's in-service and post-service history, as his treating physician. She offered a reason for her conclusion as well, which is also supported by the record. It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion. The Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Here, the Board finds that these opinions are in equipoise. Under the 'benefit-of-the-doubt' rule, where there exists 'an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter,' the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). The mandate to accord the benefit of the doubt is triggered when the evidence has reached such a stage of balance. In this matter, the Board is of the opinion that this point has been attained. Because, at the very least, a state of relative equipoise has been reached in this case, the benefit of the doubt rule will be applied. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown, 5 Vet. App. 413, 421 (1993). In light of the foregoing, entitlement to service connection for hearing loss is granted. ORDER Entitlement to service connection is granted. ____________________________________________ Bethany L. Buck Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs