Citation Nr: 1753576	
Decision Date: 11/22/17    Archive Date: 12/01/17

DOCKET NO.  14-18 804	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for right ear hearing loss.  


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

C. O'Donnell, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from December 1975 to December 1978.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.    

In June 2017, the Veteran testified before the undersigned at a video-conference Board hearing.  A transcript of the hearing is associated with the claims file.

This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system.  


FINDINGS OF FACT

The Veteran's right ear hearing loss is at least as likely as not causally related to his military service.  


CONCLUSION OF LAW

Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for a right ear hearing loss disability have been met. 38 U.S.C. §§ 1101, 1112, 1131 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Establishing direct service connection generally requires competent evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  However, where the preponderance of the evidence is against the claim, the claim for benefits must be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996).

The Board finds that the evidence of record supports a grant of service connection for right ear hearing loss.  First, there is evidence of a current disability.  An April 2012 VA examination report diagnosed right ear sensorineural hearing loss, and audiometric testing revealed a hearing loss disability that meets the criteria under 38 C.F.R. § 3.385.  See 38 C.F.R. §§ 3.303(a). 

Second, there is evidence of an in-service event, disease, or injury, as the Veteran provided competent and credible lay statements regarding noise exposure in service. See 38 C.F.R. § 3.303(a); 38 U.S.C. § 1154(b); Shedden, 381 F.3d at 1167. Specifically, the Veteran stated that, he was exposed to noise from cannon, artillery, and small arms fire, and that he did not utilize hearing protection.  See April 2012 VA examination.  Additionally, the Board notes that the Veteran's DD Form 214 reflects that the Veteran was a canon crewman.  Thus, the Board finds that the Veteran has competently and credibly reported in-service noise exposure. 

Third, the Board finds that the evidence is at least in equipoise as to whether the Veteran's current hearing loss is related to service.  In that regard, the law is clear. Pursuant to the "benefit-of-the-doubt" rule, where there is "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. 38 U.S.C. § 5107 (West 2014).  The Board acknowledges that there is evidence against the claim.  In that regard, an April 2012 VA examiner opined that it was less likely than not that the Veteran's right ear hearing loss disability had its onset during his service.  However, a June 2017 opinion submitted by the Veteran's private physician is supportive of the claim, and includes a sufficient rationale.  The Board therefore concludes that, with the benefit of the doubt resolved in the Veteran's favor, a grant of service connection for right ear hearing loss is warranted.  See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) ("[T]he 'benefit of the doubt' standard is similar to the rule deeply embedded in sandlot baseball folklore that 'the tie goes to the runner' . . . . [I]f . . . the play is close, i.e., 'there is an approximate balance of positive and negative evidence,' the veteran prevails by operation of [statute].").


ORDER

Entitlement to service connection for right ear hearing loss is granted.  





____________________________________________
ANTHONY C. SCIRÉ, JR.
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs