Citation Nr: 18146258 Decision Date: 10/31/18 Archive Date: 10/30/18 DOCKET NO. 16-17 684 DATE: October 31, 2018 ORDER Service connection for right ear hearing loss is granted.   FINDING OF FACT The Veteran’s right ear hearing loss is related service. CONCLUSION OF LAW The criteria for service connection for right ear hearing loss have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1971 to February 1973. This matter is on appeal from a July 2014 rating decision. Service connection for right ear hearing loss. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. 1110; 38 C.F.R. 3.303. Further, service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a veteran 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 -the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). VA regulation provides that impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. §3.385. In hearing loss claims, the United States Court of Appeals for Veterans Claims has resolved that when a Veteran had normal hearing at service entrance; was exposed to loud noise in service; and a separation examination shows a threshold shift “there need not have been sufficient hearing loss at that time to have constituted an actual ratable disability according to 38 C.F.R. § 3.385 (regulation defining hearing loss for VA compensation purposes); instead, the Veteran need only now satisfy the requirements of this VA regulation, not necessarily then, and have competent and credible evidence linking his current hearing loss to his service - as opposed to other (“intercurrent”) causes. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). See also Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. It is not a means of reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102 Mere suspicion or doubt as to the truth of any statements submitted, as distinguished from impeachment or contradiction by evidence or known facts, is not justifiable basis for denying the application of the reasonable doubt doctrine if the entire, complete record otherwise warrants invoking this doctrine. The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident allegedly arose under combat, or similarly strenuous conditions, and is consistent with the probable results of such known hardships. Id. Therefore, when there is approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 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). Analysis The Veteran seeks entitlement to service connection for right ear hearing loss as a result of his duties as a Mat Fac Specialist in the Air Force. The Veteran contends that his duties, which included refueling aircrafts, constantly exposed him to loud noise. The Veteran also asserts that there was error in determining that only his left ear hearing loss should be awarded service connection. A review of the Veteran’s service treatment records (STR’s) shows that the Veteran had normal right ear hearing at service entrance, that he was exposed to loud noise in service, and that his separation examination shows a threshold shift. To that extent, the Veteran’s audiology test at the time of entry in October 1971, was: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT EAR 15 5 10 - 5 LEFT EAR 15 5 5 - 5 The separation medical exam performed in September 1972, reported a threshold shift as follows: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT EAR 15 10 10 15 15 LEFT EAR 15 10 15 20 15 After service, the Veteran was afforded a VA examination in July 2014. The examination results demonstrated that in the frequencies 500, 1000, 2000, 3000 and 4000 Hertz, the Veteran’s average decibel loss in his left ear was 53. In addition, a speech discrimination score of 76 percent was found. Both results are considered a hearing disability as per 38 C.F.R. § 3.85. In terms of his right ear, the results demonstrated that in the frequencies 500, 1000, 2000, 3000 and 4000 Hertz, the Veteran’s average decibel loss was 46. Similarly, a speech discrimination of 72 percent was found. Both results considered a hearing disability as well in accordance with VA regulation. See 38 C.F.R. § 3.385. Furthermore, the VA examiner confirmed a diagnosis of bilateral sensorineural hearing loss in the frequency range of 500-4000 Hz. The Board notes that a July 2014 rating decision reflects service connection was established for hearing loss based on the Veteran’s military occupational specialty “of Mat Fac Specialist” which is “consistent with acoustic trauma”. However, the RO determined that the only affected ear, for service connection purposes, was the left ear. The RO’s decision relied on a medical opinion provided by the VA examiner, who stated that the “Veteran had a significant threshold shift in [his left ear] only.” The rationale provided by the examiner was that: “The Court of Appeals for Veterans[] Claims has held that hearing loss may be found service-connected if hearing worsened in service even though the hearing acuity at separation did not meet the current regulatory requirements of 38 C.F.R. 3.385 for compensation for hearing loss. According to [Dr. K.D.], Deputy Director of Speech Pathology and Audiology for the Department of Veterans[] Affairs, once it is determined that the hearing loss was incurred in military service, the veteran may be compensated for the disabling effects of his current hearing loss. According to [Dr. K.D.], Deputy Director of Speech Pathology and Audiology for the Department of Veterans[] Affairs, a change in hearing is a significant change greater than normal measurement error (i.e., greater than 10 dB HL).” Nonetheless, the examiner opined that although there was a permanent positive threshold shift, greater than normal measurement variability at any frequency between 500 and 6000 Hz for the right ear, the Veteran’s hearing loss (for his right ear) was not “at least as likely as not caused by or a result of an event in military service.” The examiner’s rationale was: “There is no evidence in the record that the veteran sustained noise injuries based on audiograms. If there is a current hearing loss, there is no basis to conclude that this hearing loss was causally related to military service”. Another VA examination was afforded to the Veteran in February 2016. The results demonstrated that in the frequencies 500, 1000, 2000, 3000 and 4000 Hertz, the Veteran’s average decibel loss was 54. This time a speech discrimination of 80 percent was found. The same examiner from the 2014 VA examination noted that the Veteran’s hearing loss was less likely than not caused by or a result of military noise exposure, adding that the Veteran had normal hearing sensitivity at separation. The examiner’s rationale remained the same as his previous rationale in 2014, to the extent that there was no evidence in the record to sustain the Veteran suffered noise injuries for which, if there was a hearing loss, there was no basis to conclude it was casually related to military service. The Board does not find the two medical opinions persuasive as to the right ear. Under similar circumstances, the VA examiner found a connection between the Veteran’s left ear hearing loss and in-service noise exposure. The entrance and separation examination results are identical for the right and left ears at 500, 1000 and 4000 Hertz, including threshold shifts at 1000 and 4000 Hertz. While the results at 2000 Hertz are not the same, there is no medical explanation that this level is dispositive to the different opinion results. As such the Board finds that the in-service right and left ear threshold shifts are similar enough in nature. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. (Continued on the next page)   In light of the findings and the evidence discussed above, the Board finds that the Veteran’s right ear hearing loss is related to service. This is particularly so when reasonable doubt is resolved in the Veteran’s favor. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, service connection for right ear hearing loss is warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD William Pagan, Associate Counsel