Citation Nr: 18152530 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 16-43 743 DATE: November 23, 2018 ORDER Entitlement to service connection for right ear hearing loss is granted. REMANDED Entitlement to an initial compensable rating for left ear hearing loss is remanded. FINDING OF FACT The Veteran’s right ear hearing loss is etiologically related to service. CONCLUSION OF LAW The criteria to establish service connection for right 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, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1966 to April 1968. The Veteran appeals a December 2014 rating decision by the Agency of Original Jurisdiction (AOJ) denying entitlement to service connection for right ear hearing loss and awarding an initial noncompensable disability for left ear hearing loss. A Veteran is entitled to Department of Veterans Affairs (VA) disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110. Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran contends his hearing loss in both ears is related to excessive noise while serving as an armored personnel carrier driver and gunner. See April 2018 Veteran Lay Statement. The first Shedden element is met. The Veteran has right ear hearing loss for VA purposes. See November 2014 VA examination report. The second Shedden element is also met. The Board finds the Veteran was exposed to excessive noise as part of his military occupational specialty as an infantryman. As such, the crux of this case centers on whether the Veteran’s right ear hearing loss is attributable to his noise exposure in service. In support of the claim is a letter from a private audiologist rendering a positive nexus opinion. See October 2014 Dr. M.G. Letter. Dr. M.G. detailed the Veteran’s time in service, noted a 1969 hearing evaluation informing the Veteran of some hearing loss, and noted progressive worsening over the years. Id. Also in support, the Veteran stated he fired various weapons and drove a tank during service, but did not use ear protection. See May 2015 VA treatment record. The Veteran also stated he did not engage in loud activities post service. Id. In contrast, the record contains two negative nexus opinions. See August 2016 and November 2014 VA examination reports. Both clinicians based their conclusions on not finding significant threshold shifts from entrance to separation. The August 2016 clinician additionally relied on the lack of medical records regarding hearing loss during service. As a result, the August 2016 clinician relied primarily on the absence of contemporaneous medical records to render a negative nexus opinion; such an opinion is inadequate for adjudicative purposes. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). It is the Board’s duty to assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. Owens v. Brown, 7 Vet. App. 429, 433 (1995). The failure of the clinician to provide a basis for his or her opinion goes to the weight or credibility of the evidence in the adjudication of the merits. Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Here, Dr. M.G.’s October 2014 private opinion goes more in depth in analyzing the Veteran’s contentions and time in service versus the November 2014 VA opinion. Dr. M.G. considered the Veteran’s full history, noise exposure, and progression of symptoms. As a result, the Board finds Dr. M.G.’s opinion better-supported and accordingly more probative than the November 2014 opinion. The Board finds there is evidence of record establishing a link between the Veteran’s noise exposure in service and his right ear hearing loss. Accordingly, the Board finds that a grant of service connection is warranted for right ear hearing loss. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND As outlined above, the instant decision grants service connection for right ear hearing loss. Because the agency of original jurisdiction (AOJ) must rate the Veteran’s service connected hearing loss considering impairment in hearing in both ears in the first instance, it would be premature for the Board to render a decision on the increased rating issue at this time. See generally 38 U.S.C. § 7104(a) (providing one review on appeal to the Secretary). As such, the issue of entitlement to an initial compensable disability rating for hearing loss is remanded to the AOJ for assignment of a rating for bilateral hearing in the first instance. The matter is REMANDED for the following action: (Continued on the next page)   1. Readjudicate the Veteran’s claim for a higher initial disability rating for hearing loss. If the benefit sought on appeal is not granted in full, issue the Veteran and his representative with a Supplemental Statement of the Case, and return the case to the Board, if otherwise in order. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Zheng, Associate Counsel