Citation Nr: 21002481 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 14-24 768 DATE: January 13, 2021 ORDER Entitlement to service connection for right ear hearing loss is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran’s current right ear hearing loss had its onset during active military service. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for left ear hearing loss are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1969 to April 1971. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2020, the Board remanded these matters for additional development. They have returned to the Board for further appellate review. Service Connection Service connection will be granted if the evidence demonstrates that a disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may also be granted for a disease first 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). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran’s disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue.”). 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; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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 the claimant. Entitlement to service connection for right ear hearing loss. The Veteran contends that his right ear hearing loss is caused by or related to acoustic trauma during service. The Veteran is service connected for tinnitus and left ear hearing loss, effective December 2011. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000 or 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. 38 C.F.R. § 3.385. The threshold for normal hearing is 0 to 20 decibels. The Veteran’s post-service treatment records contain several audiological examinations showing that he has right ear hearing loss for VA purposes. The evidence shows that the Veteran had significant exposure to loud noise and acoustic trauma during active military service. The Veteran’s DD 214 and service records indicate that his military occupational specialty (MOS) while in service was field artillery. The Veteran’s MOS is noted to have a high probability of hazardous noise exposure. The Veteran reported the onset of hearing loss during field artillery exercises while serving in Korea. The Veteran reported exposure to heavy artillery, machine guns, helicopters, and gunfire. The Veteran reported that he first began to have trouble understanding conversations during service. In this regard, the Board finds that the Veteran is both competent and credible to report on the events he experienced in-service as well as the observable manifestations of his hearing loss. The Veteran is considered competent to report experiencing a decrease in hearing during active military service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Moreover, the Veteran’s MOS and current diagnoses are consistent with a finding that his hearing disabilities had onset in service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. The Veteran received a private audiological examination in July 2014. The examiner found that it is at least a likely as not that the Veteran’s bilateral hearing loss was caused by or contributed to by exposure to excessive noise levels during his military service. Negative nexus opinions were provided by VA examiners in July 2012, August 2014, and October 2020. The Board acknowledges the differing opinions proffered by equally qualified medical professionals and concludes that one opinion does not outweigh the others. In considering the evidence discussed above, the Board finds that the evidence is at least evenly balanced as to whether the Veteran’s current right ear hearing loss had its onset during service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for bilateral hearing loss is warranted. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. VanValkenburg, 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.