Citation Nr: 1806226 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 10-11 930 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a right ear hearing loss disability. 2. Entitlement to an initial compensable rating for a left ear hearing loss disability. ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from July 1967 to July 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. This case was remanded for further development in March 2014 and July 2016. The issue of entitlement to an initial compensable rating for left ear hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT A right ear hearing loss disability is as likely as not related to service. CONCLUSION OF LAW With resolution of reasonable doubt in the appellant's favor, the criteria for service connection for a right ear hearing loss disability are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran appeals the denial of service connection for a right ear hearing loss disability. Service connection may be established for disability resulting from personal injury sustained or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, such as sensorineural hearing loss, may be presumed to be service connected if manifested to a degree of 10 percent disabling or more within one year after separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. After weighing the evidence, the Board finds in favor of the Veteran's claim for service connection for a right ear hearing loss disability. To that end, the Veteran argues that his right ear hearing loss is due to in service noise exposure. His DD Form 214 reflects a military occupational specialty (MOS) of heavy vehicle driver, equivalent to the modern MOS of motor transport operator, which connotes moderate probability of hazardous noise exposure in service. In an April 1992 Walter Reed Army Medical Center record, Dr. L found that the Veteran's hearing loss seems to precede federal civilian employment but may be related to military service, although he says that some hearing loss was detected on entering service. The Veteran was afforded a VA examination in July 2013. During this examination, he reported a history of working in several jobs where ear protection use was required including in a warehouse on the Marine Corps Logistics base and in a printing center with exposure to machinery noise. He denied recreational noise exposure. The July 2013 VA examination disclosed that the Veteran had a right hearing loss disability as defined by VA regulations. The VA examiner, however, opined that the right ear hearing loss was not caused by or a result of the Veteran's service as right ear hearing acuity was within the normal range at service entrance and exit from 1967 to 1970. The Veteran was afforded another VA examination in November 2016. The VA examiner opined that the Veteran's right ear hearing loss was not at least as likely as not (50 percent probability or greater) caused by or a result of an event in military service. The VA examiner reasoned that no hearing loss was found for the right ear on entrance and exit exams with no threshold shift noted for the right ear. In an October 2017 opinion from Dr. G, however, it was opined that the Veteran's right ear hearing loss was at least as likely as not likely due to excessive noise exposure incurred during the time that he was on active duty military service. Dr. G reasoned that "although the Veteran did not immediately manifest evidence of hearing loss during his time on active duty military service or soon after military discharge, according to recently reported basic science research, the hearing loss that occurs due to damage to the inner ear from noise exposure, there can be a significant time delay from the time of noise exposure to the overt manifestation and detection of a noise induced hearing loss." The Board has been presented with positive and negative evidence regarding the etiology of the Veteran's right ear hearing loss disability. In weighing the positive and negative evidence of record, the Board finds in favor of the claim for service connection for a right ear hearing loss disability. Although the Veteran's disability was not formally diagnosed in service, positive evidence has been submitted showing a link between the Veteran's service and his current right ear hearing loss. The credible lay statements of record in conjunction with the medical opinion from Dr. G. place the evidence at least in equipoise. Because there is an approximate balance of positive and negative evidence, the benefit of the doubt must be applied in favor of the Veteran. 38 U.S.C. § 5107(b); see Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also 38 C.F.R. § 3.102. Accordingly, resolving reasonable doubt in his favor, service connection for a right ear hearing loss disability is granted. ORDER Service connection for right ear hearing loss is granted. REMAND As a result of the decision above, the Board has granted service connection for right ear hearing loss. The Board must defer consideration of a higher initial rating for left ear hearing loss as the AOJ must assign an effective date of award for right ear hearing loss and adjudicate the disability rating for hearing loss on a bilateral basis. Accordingly, the case is REMANDED for the following action: 1. Associate with the claims folder updated treatment records. 2. Readjudicate the issue of entitlement to a compensable rating for service-connected hearing loss after assigning an effective date of award for right ear hearing loss. The AOJ's attention is directed towards the provisions of 38 C.F.R. § 4.86 which apply to exceptional patterns of hearing impairment. If the benefit sought on appeal remains denied, furnish the Veteran a supplemental statement of the case and an appropriate period of time to respond. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs