Citation Nr: 18156421 Decision Date: 12/11/18 Archive Date: 12/07/18 DOCKET NO. 06-10 881 DATE: December 11, 2018 ORDER Service connection for right ear hearing loss disability is granted. FINDING OF FACT 1. The evidence is in equipoise as to whether the Veteran has a right ear hearing loss disability for VA compensation purposes. 2. The Veteran’s right ear hearing loss disability is related to conceded in-service acoustic trauma. CONCLUSION OF LAW The criteria to establish service connection for right ear hearing loss disability are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1974 to September 1978. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). By way of procedural background, in an October 2011 decision, the Board denied the Veteran’s claims for service connection for a skin disorder and for a stomach disorder. The Board remanded the claims for service connection for bilateral hearing loss and tinnitus for further evidentiary development. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). The Court vacated and remanded the issues pertaining to the Veteran’s skin and stomach disorder back to the Board pursuant to a Court Order based on a July 2012 Joint Motion for Partial Remand. The Court Order did not disturb any other issues adjudicated by the Board in its October 2011 decision. Thereafter, in May 2013 and October 2015, the Board remanded the claims for service connection for hearing loss, tinnitus, a skin disorder, and a stomach disorder. In a May 2016 rating decision, the RO ultimately granted service connection for a stomach disorder (i.e., gastroesophageal reflux disease with dyspepsia). In a July 2017 rating decision, the RO also granted service connection for a skin disorder (tinea versicolor), tinnitus, and left ear hearing loss. The July 2017 rating decision continued the denial for service connection for right ear hearing loss. A supplemental statement of the case was issued in July 2017 addressing the right ear hearing loss claim. Accordingly, as the skin, stomach, left ear hearing loss, and tinnitus issues have been granted by the RO, the Board will only address the claim for service connection for right ear hearing loss. In April 2007, the Veteran presented testimony at a personal hearing before a Veterans Law Judge (VLJ), who has since left the Board. A transcript of the hearing is of record. In May 2018, the Veteran was notified that the VLJ was no longer at the Board and was asked if he wished to have another hearing before another VLJ. In June 2018, the Veteran indicated that he did not wish to appear at another hearing. The Board notes that the Veteran also has an appeal pending for entitlement to receive a clothing allowance. However, he is awaiting a videoconference hearing before the Board on that appeal. See Veteran’s request for a videoconference hearing dated in March 2018. Consequently, that issue is not ready for adjudication at this time and will be the subject of a separate decision at a later date. Laws and Analysis for Right Ear Hearing Loss Claim Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) (2017) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). The U.S. Court of Appeals for Veterans Claims (Court) has held that “Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57(1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). When all the evidence is assembled, 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 a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Veteran has already been awarded service connection for left ear hearing loss and tinnitus as directly due to in-service noise exposure. Indeed, his service personnel records document that his military occupational specialty was an armor officer. In-service acoustic trauma is conceded. Next, the Veteran’s claim for right ear hearing loss turns on whether he has a currently diagnosed right ear hearing loss disability for VA compensation purposes. Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The evidence of record includes October 2005 VA otolaryngology consultation notes which show that the Veteran presented with left-sided ear pain, subjective hearing loss, and tinnitus. An audiogram was conducted and showed “bilateral symmetric slight sensorineural hearing loss, bilateral, down to approximately 30 to 35 decibels in the higher frequencies.” Speech discrimination scores were noted as “in the 60s bilaterally.” The Board finds that the October 2005 VA notes demonstrate similar hearing loss in both ears. The Veteran was afforded a VA audiological examination in December 2011. The audiological evaluation at that time showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 25 30 25 The examiner noted that speech discrimination scores were not appropriate for the Veteran due to language difficulties, cognitive problems, and inconsistent speech discrimination scores. VA treatment records also include June 2013 VA audiology consultation notes which show the Veteran’s report of gradually worsening hearing loss. The VA audiologist indicated that audiogram results were not entered into the system due to poor SRT (speech reception threshold)—PTA (pure tone audiometry) match. The audiologist stated that the disagreement was not large, but was significant. The audiologist did note, however, that the thresholds indicated “mild to moderate” loss of speech frequencies and that there was “no significant ear difference.” Moreover, a comparison to the previous results (i. e., in December 2011) showed “poorer thresholds.” Further development could be undertaken so as to obtain additional audiometric findings. However, the Board finds that the Veteran’s language difficulties and cognitive impairment that caused the speech recognition issue will have likely remained the same, if not worse. The Board will therefore resolve any doubt by finding that the evidence is at least in equipoise as to whether the Veteran meets the criteria for right ear hearing loss disability for VA compensation purposes. The Veteran’s hearing loss severity between the right and left ear have been noted as “symmetric” and with “no significant ear difference.” This demonstrates to the Board that the Veteran’s hearing loss is similar in severity, bilaterally. Moreover, the October 2005 and June 2013 VA notes both indicated that the Veteran’s word recognition scores were approximately 60 percent in both ears, which meets the criteria for impaired hearing under 38 C.F.R. § 3.385. Accordingly, the Veteran has a current hearing loss disability in the right ear, and as indicated above, in-service noise exposure has already been conceded. On the question of etiology, the Board finds that the Veteran has competently and credibly testified that he experienced hearing difficulty ever since being exposed to acoustic trauma in service as a result of tank engine noise and cannon fire. With resolution of any reasonable doubt in the Veteran’s favor, the Board finds both competent and credible the Veteran’s statements as to continuing symptoms of right ear hearing loss since service. (Continued on the next page)   For these reasons, service connection for right ear hearing loss disability is granted. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Casadei, Counsel