Citation Nr: 18158304 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 17-06 919 DATE: December 14, 2018 ORDER Entitlement to service connection for left ear hearing loss is granted. FINDING OF FACT Resolving all doubt in the Veteran’s favor, the Board finds that the currently diagnosed left ear hearing loss was incurred during the Veteran’s service. CONCLUSION OF LAW The criteria for entitlement to service connection for left ear hearing loss have been met. 38 U.S.C. §§ 1131, 5103, 5103(a), 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from July 1979 to July 1985. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision issued by the Department of Veterans Affairs (VA). In a November 2016 rating decision, the Veteran was awarded service connection for right ear hearing loss. 1. Entitlement to service connection for left ear hearing loss The Veteran contends that his hearing loss is due to his military service. In order to establish service connection for the claimed disability, there must be (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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 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 if the disability is one that is listed in 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including arthritis and diseases of the nervous system, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection for impaired hearing is subject to 38 C.F.R. § 3.385, which 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. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence 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); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Although lay persons are competent to provide opinions on some medical issues, some medical issues fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale and a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau, supra. Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In order to deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). As to a current diagnosis, the Veteran’s hearing disability has been diagnosed as left ear sensorineural hearing loss. As to the Veteran’s lay statements, the Veteran reported to VA that he was constantly exposed to acoustic trauma while he was on active duty. The Veteran stated that his duties as a radioman required him to listen to loud static and Morse Code at extreme volumes for 12 hours a day. Turning to the medical evidence at hand, the Veteran attended a VA examination for this issue in February 2016, at which time the Veteran exhibited left ear hearing loss that constitutes a disability for VA benefits purposes. At the examination, the Veteran reported that he was exposed to loud noises on active duty when he was around communications equipment and construction noise in the ship yard. The Veteran also denied any post-service occupational or recreational noise that could account for his hearing loss disability. Following the examination, the examiner found that the Veteran’s left ear hearing loss was not related to his military service. The examiner opined that “the Veteran was released from active duty with normal hearing in the left ear and without a statistically significant shift in thresholds for the worse when comparing entrance to exit adjudication frequencies.” See February 2016 VA examination. In addition, the Board notes that the Veteran’s doctor provided a medical opinion regarding the nature and etiology of the Veteran’s condition. The Veteran’s doctor stated that the Veteran’s audiogram revealed a slight to borderline sensorineural hearing loss on the left and a mild to moderate mixed (conductive and sensorineural) hearing loss on the right. The Veteran’s doctor stated that sensorineural hearing loss occurs due to noise exposure, age, and genetics. The doctor added that “I do realize that he was exposed to significant noise exposure without adequate noise protection during his time of service.” The doctor went on to state that “he also has a conductive component to his hearing loss which can be due to chronic infection often over several years and throughout childhood. Although the sensorineural component of his hearing is most likely due to his noise exposure, the best way to assess whether or not the conductive loss was present previously is to compare an old audiogram upon his entrance into the Navy and at discharge.” See December 2014 private medical opinion. Thus, regardless of the possible conductive component to the Veteran’s left ear hearing loss that could be related to the Veteran’s childhood, the private examiner still opined that the sensorineural component of his left ear hearing loss was most likely due to his noise exposure. Therefore, in summary, the Board finds that service connection is warranted for the Veteran’s left ear hearing loss. In reaching this conclusion, the Board has reviewed the available lay statements, his medical history, and the available medical opinions. After a review of the record, the Board finds that the evidence, both positive and negative as to the issues of service connection for left ear hearing loss is at lease in equipoise. Based on the foregoing and resolving all reasonable doubt in the Veteran’s favor, the Board finds that service connection is warranted for the Veteran’s left ear hearing loss. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Rescan, Associate Cousel