Citation Nr: 18142723 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 15-09 625 DATE: October 17, 2018 ORDER Entitlement to service connection for left ear hearing loss is granted. Entitlement to service connection for right ear hearing loss is denied. FINDING OF FACT The Veteran's claim was submitted while he was still in-service. The evidence of record supports a finding of a nexus between an in-service event and the Veteran’s current diagnosis of left ear hearing loss. The Veteran does not have a right ear hearing loss disability. CONCLUSION OF LAW The criteria for service connection for left ear hearing loss have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty naval service from January 1987 to February 1998, and from April 1999 to September 2012. This matter comes to the Board of Veterans' Appeals (Board) from a September 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In June 2018, the Veteran presented testimony via videoconference hearing before the undersigned Veterans Law Judge, and a transcript of this hearing has been associated with the record. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d) (2017). Service connection may be granted for an organic disease of the nervous system, such as a sensorineural hearing loss, when it is manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). Sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 C.F.R. 3.309(a). The requirement for a current disability requirement to establish service connection is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowski v. Shinseki, 26 Vet. App. 289, 294 (2013). Applicable regulations provide that impaired hearing shall be considered a disability when the auditory thresholds in any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hz are 40 decibels or greater; the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores are 94 percent or less. 38 C.F.R. § 3.385 (2017). 38 C.F.R § 3.385 does not preclude service connection for a current hearing loss disability where hearing was within normal limits on audiometric testing at separation from service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Rather, when audiometric test results at a veteran's separation from service do not meet the requirements of 38 C.F.R. § 3.385, a veteran may nevertheless establish service connection for current hearing disability by submitting medical evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). Where the requirements for hearing loss disability pursuant to 38 C.F.R. § 3.385 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, 5 Vet. App at 155. If the evidence of record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflect an upward shift in tested thresholds while in service, though still not meeting the requirements for "disability" under 38 C.F.R. § 3.385, and (b) post-service audiometric testing produces findings which meet the requirements of 38 C.F.R. § 3.385; then the rating authorities must consider whether there is a medically sound basis to attribute the post service findings to the injury in service, or whether these findings are more properly attributable to intervening causes. Id. at 159. After considering all information and lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). 1. Service connection for left ear hearing loss The Veteran alleges that he has a hearing loss disability is due to his in-service noise exposure. The Veteran's claim was submitted while he was still in service in June 2012. The Veteran’s in-service audiology records did not show a disability. After exiting service, the Veteran reported an incident in November 2013, in which he suffered sudden hearing loss in the left ear. The September 2014 C&P examination revealed that speech recognition scores were 20 percent for the left ear. The following pure tone thresholds were reported as: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 15 15 LEFT 75 75 80 75 65 The Veteran had an auditory threshold at 500, 1000, 2000, 3000, or 4000 Hertz of 65 decibels or greater in the left ear. Subsequent evaluations confirmed the diagnosis. Thus, the Veteran has a current left ear hearing loss disability. 38 C.F.R. § 3.385 (2017). As to the second element of service connection, the in-service injury or disease, the Board notes that the record contains sufficient evidence that the Veteran's active service exposed him to acoustic trauma. Moreover, the Veteran's DD-214 lists his MOS as an Aviation Warfare Officer, and the Veteran also testified extensively at the June 2018 Board hearing about his activities as a helicopter pilot and an instructor for other helicopter pilots during his time in service. As to the third element of a service connection claim, the nexus between the Veteran's hearing loss disability and the in-service noise exposure, the evidence is mixed. The Veteran testified that his hearing loss began even while he was in service, and the Veteran is competent to provide testimony to establish the occurrence of medical symptoms. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). However, the Veteran is not medically qualified to prove a matter requiring medical expertise. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). Thus, while the Veteran's statements that he had trouble hearing while he was in active service are both competent and credible, his statements alone are not sufficient to medically attribute his current hearing loss to the acoustic trauma he experienced in service. A subsequent VA examination provided a negative nexus opinion. The examiner in September 2014 opined that the Veteran's hearing loss was not caused by or the result of military acoustic trauma. This examiner was persuaded by the fact that the Veteran had entered and exited service with normal hearing, and did not provide an explanation or rationale that attributed the Veteran's hearing loss to an intervening cause. Even if disabling loss is not demonstrated at separation, a veteran may establish service connection for a current hearing disability by submitting evidence that a current disability is causally related to service. Hensley, 5 Vet. App at 160. The Veteran’s otolaryngologist submitted a letter in July 2018 indicating that the Veteran has a long-documented history of occupational noise exposure in his military service [as] a Naval aviator, and that the Veteran’s hearing loss could be related to his noise exposure, viral exposure or vascular changes within his ear. However, the otolaryngologist also noted that there was no definitive test to determine the etiology. The Board finds that the evidence considered as a whole is sufficient to provide the necessary link to establish a nexus between the Veteran's current left ear hearing loss disability and his in-service noise exposure. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In this regard, the Board notes that although the July 2018 private examiner framed his nexus opinion in a speculative manner with the use of the phrase “could be,” by stating all of the potential factors that contribute to his hearing loss disability and including in-service noise exposure, the examiner has essentially opined that in-service noise exposure is at least in part related to his current left ear hearing loss. Thus, while the medical evidence is not unequivocal, it has nevertheless placed the pertinent record in relative equipoise, and, resolving all reasonable doubt in the Veteran's favor, service connection for a left ear hearing loss disability should be granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Service connection for right ear hearing loss The Veteran alleges that he has a right ear hearing loss disability that is also due to his in-service noise exposure. The Veteran's claim was submitted while he was still in-service in June 2012. The Veteran’s in-service audiology records did not show a disability. In the context of the current claim, the Veteran was accorded a VA examination in September 2014. Speech recognition scores were 100 percent for the right ear. The following pure tone thresholds were reported: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 15 15 LEFT 75 75 80 75 65 After a review of all the evidence, the Board finds that the Veteran does not have a current hearing loss disability as to his right ear as defined for VA purposes. As there is no current disability at any time pertinent to the claim on appeal, the basic service connection requirements are not met, and the Board concludes that service connection for right ear hearing loss is not warranted. McClain v. Nicholson, 21 Vet. App. 319 (2007); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. R. Montalvo, Associate Counsel