Citation Nr: 18141177 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 16-15 998 DATE: October 9, 2018 ORDER Entitlement to service connection for left ear hearing loss is granted. REMANDED Entitlement to service connection for right ear hearing loss is remanded. FINDING OF FACT Resolving all doubt in the Veteran’s favor, the Veteran’s currently diagnosed hearing loss in his left ear was incurred during active service. CONCLUSION OF LAW The criteria for service connection for left ear hearing loss have been met. 38 U.S.C. 1101, 1110, 1131, 5103, 5107; 38 C.F.R. 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from August 1966 to August 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. Finally, the Board notes that based on several statements from the Veteran, it is unclear whether it is his intention to continue with his claim for service connection for right ear hearing loss because of his belief that his right ear hearing loss preexisted service and was not aggravated during service. Therefore, the Board is remanding this claim to clarify whether the Veteran does wish to continue with this claim and if so, to further develop the claim based on the theory of aggravation. Entitlement to service connection for left ear hearing loss The Veteran contends that his hearing loss of his left ear is due to constant noise exposure while he was working as a mechanic next to an artillery range during his service in the military. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b), Walker v. Shinseki 708 F.3d 1331. (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). The Veteran was afforded a Veteran Administration (VA) examination in March 2014, in connection with his claim for service connection for bilateral hearing loss. During this examination, the Veteran was diagnosed with bilateral hearing loss that is sufficient to constitute a disability for VA purposes. See, March 2014 VA examination report; 38 C.F.R. § 3.385. Hence, the Veteran has a current disability of hearing loss. Nonetheless, the VA examiner opined that because the Veteran’s service treatment records reflects that there was no significant change in the Veteran’s hearing threshold sensitivity from the time of his enlistment examination to the time of his separation examination, the Veteran’s hearing loss is not connected to his military service. See, March 2014 VA examination report. When there is no diagnosis of hearing loss in service, the absence of documented hearing loss in service is not fatal to a service connection claim for such disability, especially if service records indicate a significant in-service threshold shift. Ledford v. Derwinski, 3 Vet. App. 87 (1992); Hensley v. Brown, 5 Vet. App. 155 (1993). Establishing service connection is possible if the current hearing loss can be adequately linked to service. Ledford, 3 Vet. App.at 89. Thus, a claimant who seeks to establish service connection for a current hearing disability must show, as is required in a claim for service connection for any disability, that the current disability is the result of an injury or disease incurred in service; the determination of which depends on a review of all of the evidence of record. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Additionally, other organic diseases of the nervous system, which may include sensorineural hearing and tinnitus, are classified as “chronic diseases” under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) also applies. 38 C.F.R. § 3.307; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Presumptive service connection for “chronic diseases” must be considered on three bases: chronicity during service, continuity of symptomatology since service, and manifestations within one year of the veteran’s separation from service. Walker, 708 F.3d at 1338. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the present of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Although lay persons are considered competent to provide opinions on some medical issues, some medical issues fall outside of the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same, and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, VA shall give the benefit of the doubt to the Veteran. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board notes that the VA examiner formulated his March 2014 opinion solely based on the absence of documented treatment in service, and no significant in-service threshold shift present. The Veteran has relayed that as a mechanic he was constantly exposed (within 200 feet) to significant loud noises on a regular basis, which included large artillery, such as 105 mm howitzers, weapons, heavy equipment, diesel engines, aircraft, radios and power tools. The Veteran acknowledges wearing hearing protection sometimes, but that this was not consistent. See, Veteran’s March 2016 correspondence. See, March 2014 VA examination. See, April 2016 VA Form 9. See, May 2018 Appellate Brief. The Board finds that the Veteran’s hearing loss is linked to his military service, and consequently finds the VA examiner’s rationale for lack of service connection to be inadequate. In weighing these facts, the Board assigns a low probative value to the VA examiner’s opinion. Further, the Board notes that the Veteran is competent to identify reduced hearing acuity and he is competent to report when he first started experiencing the symptoms of his hearing loss disability. Heuer v. Brown, 7 Vet. App. 379 (1995). The Veteran reported that his hearing loss in his left ear began shortly after an illness while he was stationed in Germany, but he just did not complain about it; and that his left ear hearing loss continues to worsen to the extent that he now wears hearing aids. See, VA Form 9. See, March 2016 Medical Treatment Record. As the Board finds the Veteran competent and credible with respect to his observable symptoms and in-service occurrences that can be attributed to acoustic trauma, the Board assigns a high probative value to the Veteran’s statements. Therefore, the Board finds that the evidence is at least in equipoise regarding whether the Veteran’s current left ear hearing loss was incurred in service. Accordingly, and affording the Veteran the benefit of the doubt, the Board finds that service connection for his hearing loss in his left ear is warranted. 38 U.S.C. 1101, 1131, 5107(b); 38 C.F.R. 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for right ear hearing loss is remanded As was noted above, after making an effort to contact the Veteran for the purpose of clarifying whether he wishes to withdraw his remaining claim for service connection for right ear hearing loss, should the Veteran wish to continue with the claim, it will be necessary to obtain an additional examination and opinion with respect to the issue of aggravation. In this regard, the Board notes that while the Veteran noted a history of right ear deafness at the time of enlistment, this condition was not diagnosed or otherwise confirmed by the examiner at that time, and the Veteran’s identification of the condition is not sufficient to “note” the disability on entry. Therefore, the Board preliminarily finds that in order to rebut the presumption of soundness with respect to the Veteran’s right ear hearing, the record must establish that right ear hearing loss both clearly and unmistakably preexisted service and was not aggravated during service. See Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). If both of these requirements are not met, the presumption of soundness is not rebutted and the case becomes one of direct service connection. As these questions have not yet been posed to an examiner, should the Veteran wish to continue his appeal of this claim, an additional examination and opinion should be obtained. The matter is REMANDED for the following action: 1. Contact the Veteran for the purpose of clarifying whether he wishes to continue his appeal of the denial of his claim for service connection for right ear hearing loss. Further advise the Veteran that in the event he does not respond within 30 days of this request, VA will assume that he wishes to continue with his appeal, and act accordingly. 2. Should the appeal of the claim for service connection for right ear hearing loss continue, schedule the Veteran for a VA examination to determine the nature and etiology of this disability. The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner is asked to first opine as to whether the Veteran’s right ear hearing loss both clearly and unmistakably preexisted service and was not aggravated during service. If the Veteran’s right ear hearing loss did not clearly and unmistakably preexist service or if it did, was not clearly and unmistakably not aggravated during service, opine as to whether it is at least as likely as not (50 percent probability or greater) that his right ear hearing loss is related to service. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.B. King, Associate Counsel