Citation Nr: 1803670 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 16-39 763 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE Entitlement to service connection for right ear hearing loss. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD P. E. Metzner, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1960 to November 1964. The current matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran's right ear hearing loss is etiologically related to his in-service hazardous noise exposure. CONCLUSION OF LAW The criteria for service connection for right ear hearing loss are met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). In light of the favorable determination to grant service connection for right ear hearing loss, any deficiency found in VA's duties to notify and assist is rendered moot. There is no prejudice to the Veteran in proceeding to decide this issue. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of those frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2017). The lack of any evidence of hearing loss during service is not fatal to the Veteran's claim. The laws and regulations do not require in-service complaints of or treatment for hearing loss in order to establish service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Instead, "where the regulatory threshold requirements for hearing disability are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post-service test results meeting the criteria of 38 C.F.R. § 3.385." Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (quoting from a brief of the VA Secretary). When there is an approximate balance of positive and negative evidence on an issue material to a determination, VA resolves reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Here, the Veteran seeks service connection for right ear hearing loss due to hazardous noise exposure in-service. As discussed more fully below, the Board finds that service connection for right ear hearing loss is warranted. First, the record establishes that the Veteran has a current diagnosis for right ear sensorineural hearing loss. Specifically, in an October 2015 VA audiological examination, the Veteran's right ear puretone thresholds at 500, 3000, and 4000 Hertz were 40, 65, and 65, respectively. Such is sufficient to meet the requirements for impaired hearing under 38 C.F.R. § 3.385. Thus, Shedden element (1) is met. Further, the evidence of record supports a finding that the Veteran sustained in-service hazardous noise exposure as a result of his duty military occupational specialty (MOS) as an aircraft repairman. See Form DD 214. Significantly, a duty MOS in aircraft maintenance has been determined by the Department of Defense to involve a "highly probable" likelihood of hazardous noise exposure. See VA Fast Letter 10-35 (Sept. 2, 2010) (providing Duty MOS Noise Exposure Listing and stating that, if the duty position is shown to have a "Highly Probable" likelihood of exposure to hazardous noise, exposure to such noise will be conceded for purposes of establishing the in-service event). Thus, as in-service hazardous noise exposure is conceded, Shedden element (2) is met. Lastly, with respect to the final element of the Shedden analysis, the nexus element, the Board finds that it is met. In this regard, the Board notes that the Veteran has essentially contended that he experienced right ear hearing loss since service. See August 2016 VA Form 9. The Board finds that the Veteran's statement is competent, credible, and probative of the presence of in-service right ear hearing loss and establishes a continuity of relevant symptomatology for right ear hearing loss since service. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence). The Board acknowledges that, in the October 2015 VA audiological examination, the examiner opined that it was less than likely that the Veteran's current right ear hearing loss was related to military service. The examiner explained that there was no significant change in the Veteran's hearing acuity during service. Significantly, however, the examiner failed to discuss the Veteran's actual right ear puretone threshold shift that occurred during service and failed to explain at what point the numerical threshold shift would be deemed "significant." Moreover, to the extent the examiner based her opinion on the Veteran's normal right ear hearing during service, her opinion is of limited probative value as the absence of a hearing loss disability in service is not, in and of itself, fatal to a claim for service connection for hearing loss. See Ledford, 3 Vet. App. at 89 (1992). In light of the foregoing, the Board finds that the requisite elements of service connection are met. The Veteran has current right ear sensorineural hearing loss, he sustained acoustic trauma in active service, and he has competently and credibly asserted a continuity of relevant symptomatology since service. As such, the evidence for and against the claim of entitlement to service connection for right ear hearing loss is at least in relative equipoise. Accordingly, reasonable doubt must be resolved in favor of the Veteran, and entitlement to service connection for right ear hearing loss is granted. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for right ear hearing loss is granted. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs