Citation Nr: 20021858 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 18-40 762 DATE: March 27, 2020 ORDER Entitlement to service connection for a left ear hearing loss disability is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his current left ear hearing loss disability is related to harmful noise exposure during active service. CONCLUSION OF LAW The criteria for service connection for a left ear hearing loss disability have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.385 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1969 to March 1971. Service Connection The Veteran contends that he is entitled to service connection for his left ear hearing loss disability. Notably, he has already been service-connected for hearing loss in his right ear. For the following reasons, the Board finds that service connection is warranted for the left ear as well. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory thresholds in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 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. 38 C.F.R. § 3.385. Hearing loss does not constitute a disability if it does not meet the threshold requirements for 38 C.F.R. § 3.385. Palczewski v. Nicholson, 21 Vet. App. 174, 179-80 (2007). At the outset, the Board notes that the Veteran has a current left ear hearing loss disability, for VA purposes, as demonstrated by a November 2015 VA audiogram. See 38 C.F.R. § 3.385. Moreover, VA has conceded that the Veteran was exposed to harmful noise in service given his lay reports of such exposure and his military occupational specialty (MOS) of fire control repairman. Thus, the only question on appeal is whether his left ear hearing loss disability is related to service. The Veteran’s March 1969 enlistment audiogram shows the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 -- 0 LEFT 5 0 0 -- 0 Prior to separation, in November 1970, the Veteran was provided another audiogram, which revealed the following puretone thresholds, again in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 20 5 5 -- 15 LEFT 15 5 10 -- 10 There is no record that the Veteran was provided a separation questionnaire to document his hearing trouble. However, the Veteran has reported that he was told he had hearing loss at separation and was advised to file for disability compensation. (He specifically noted that he underwent a physical in February 1971 during which he was told he had “a 30% hearing loss in my left ear, resulting from being on the firing line, in artillery exercises, over the eighteen months I served in Germany.”) The Board notes that the Veteran is competent to report observable symptoms, such as hearing loss, and that he is competent to report what he has been told by medical professionals. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran was afforded a VA audiological examination in November 2015. The examiner reviewed the Veteran’s in-service audiograms and provided a positive nexus opinion with respect to his right ear hearing loss and a negative opinion with respect to his left ear hearing loss. By way of rationale, the examiner noted that a threshold shift—a shift of more than 10 decibels at one of the frequencies—had been observed in the right ear during service, but not in the left ear. On review, it appears the threshold shift observed by the examiner occurred at 4000 Hertz, where the Veteran’s right ear hearing loss had worsened by 15 decibels from enlistment to separation. Conversely, as illustrated above, the Veteran’s right ear hearing loss had not worsened by more than 10 decibels in any of the frequencies (in fact, it had worsened by exactly 10 decibels in three of the four frequencies measured). In this case, the Board finds that the positive and negative evidence of record is evenly balanced as to whether the Veteran’s current left ear hearing loss disability originated in active service. As described above, the record contains competent and probative evidence of in-service exposure to harmful noise; evidence of worsening left ear hearing loss in service (albeit with no conclusive evidence of threshold shifts); post-service evidence of a bilateral hearing loss disability; credible lay reports of bilateral hearing loss since service including, specifically, reports of left ear hearing loss prior to separation; and a medical opinion, supported by an analysis of the record, indicating a causal link between in-service hearing loss and the Veteran’s current hearing loss disability. Although there is some negative evidence of record—namely the VA examiner’s finding that the Veteran’s left ear hearing loss had not worsened dramatically enough to constitute a threshold shift in any frequency—such does not outweigh the positive evidence in this case. In light of VA’s having granted the Veteran’s claim for service connection for a hearing loss disability in his right ear, the Board finds that there would be an unwelcome element of arbitrariness in denying him service connection for his left ear when the only distinguishing factor appears to be five decibels of hearing loss in a single frequency noted in an audiogram performed almost 50 years ago. The Board does not mean to cast doubt on the opinion of the VA examiner in this case, nor to question his expertise. Rather, the Board finds that the factual discrepancy between the Veteran’s history of right ear hearing loss and left ear hearing loss is so slight as to warrant a resolution of reasonable doubt in the Veteran’s favor. In this regard, the Board notes the VA examiner’s statement that a change of ten decibels between audiograms “could be attributed to normal measurement error.” As there appears to be some uncertainty inherent in these measurements, the Board finds that it is appropriate to apply the benefit-of-the-doubt standard in granting the Veteran’s claim. Accordingly, for the reasons discussed above, the Board finds that the elements of service connection with respect to the Veteran’s current left ear hearing loss disability have been met. His claim for service connection will therefore be granted. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Minot, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.