Citation Nr: 21004480 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 16-61 468 DATE: January 27, 2021 ORDER Service connection for left ear hearing loss is granted. Service connection for a neck disorder is granted. FINDINGS OF FACT 1. The competent and probative evidence is at least in equipoise as to whether the Veteran’s current left ear hearing loss for VA purposes had its onset during or is otherwise related to the Veteran’s period of active service. 2. The competent and probative evidence is at least in equipoise as to whether the Veteran’s current neck disorder had its onset during or is otherwise related to the Veteran’s period of active service. CONCLUSIONS OF LAW 1. The criteria for service connection for left ear hearing loss have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385 2. The criteria for service connection for a neck disorder have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1971 to February 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the Veteran testified at a Board videoconference hearing. A transcript of the hearing has been associated with the virtual file. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, establishing service connection requires competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). When 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(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). 1. Service connection for left ear hearing loss. The Veteran contends that left ear hearing loss began during service and has continued since discharge from service. The Veteran specifically alleges that his military occupational specialty (MOS) of a boiler technician regularly exposed him to loud noises from boilers for five consecutive years. See December 2020, Hearing transcript. After review of the record, the Board finds the criteria for service connection for left ear hearing loss has been met. In a claim of service connection for impaired hearing, demonstration of the existence of a current disability is subject to the additional requirements of § 3.385, which provides that service connection for impaired hearing shall not be established until the hearing loss meets pure tone and/or speech recognition criteria. Under this regulation, hearing status will be considered a disability for the purposes of service connection when the auditory thresholds in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; the auditory thresholds for at least three of these frequencies 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. As the disability in question, hearing loss, is a chronic disease under 38 C.F.R. § 3.309(a), an award of service connection may be established based on continuity of symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). An April 2015 VA examination indicates the Veteran’s left ear has an auditory threshold of 40 dB at 4000 Hz. The Board, accordingly, finds left ear hearing loss for VA purposes. See April 2015, VA examination. Service treatment records (STRs) indicate the Veteran’s left ear audiometric readings in May 1971 were 10 dB at 500 Hz, five dB at 1000 Hz, 10 dB at 2000 Hz, five dB at 4000 Hz, and zero dB at 6000 Hz. By January 1970, the Veteran’s left audiometric readings had decreased to 15 dB at 500 Hz, 10 dB at 1000 Hz, 15 dB at 4000 Hz, and 20 dB at 6000 Hz. There were no audiometric readings provided in the March 1975 or February 1976 examinations. See STRs dated May 1971, March 1973, March 1975, and February 1976. During the April 2015 VA examination, the VA examiner rendered a positive nexus opinion for right ear hearing loss based on puretone audiograms from May 1971 and March 1973. Specifically, the examiner noted right ear audiometric shifts between May 1971 to March 1973 of zero to 20 dB at 500 Hz, zero to 25 dB at 1000 Hz, five to 10 dB at 4000 Hz, and zero to 15 dB at 6000 Hz. Regarding the left ear, the VA examiner opined it was too speculative for him to render an opinion because although it is possible that there was a downward significant shift in the left ear at 6000 Hz, the examiner could not be certain without in-service puretone data after May 1971. The Board accords little probative to the April 2015 VA examiner’s opinion regarding the left ear as it failed to address the in-service shift in left ear hearing from May 1971 to March 1975 and inaccurately reported there were no other in-service audiometric readings for the left year after May 1971. See April 2015, VA examination; see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (medical opinions based on an incomplete or inaccurate factual premise are not probative). In light of the foregoing, the Board finds that the weight of the competent and probative evidence is at least in equipoise as to whether current left ear hearing loss had its onset during or is otherwise related to active service. The Board notes the April 2015 VA examiner rendered a competent positive nexus opinion for the right ear solely based on in-service audiometric readings from May 1971 and March 1973, and the left ear had a similar marked decline in audiometric readings during the same timeframe. See STRs dated May 1971 and March 1973; April 2015, VA examination. Resolving all reasonable doubt in the Veteran’s favor, the Board finds service connection for left ear hearing loss is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. at 57-58. 2. Service connection for a neck disorder. The Veteran contends he injured his neck during service, and pain in the left side of his neck has been continuous since discharge from service. See December 2020, Hearing transcript; The record contains a competent diagnosis of severe degenerative joint disease at C4/5 and 6/7, generalized moderate to severe facet arthrosis throughout the cervical spine, and multi-level degenerative foraminal encroachment in the cervical spine noted at C4/5, 5/6, and 6/7 on the left side. January 2015, Private treatment record. The Board, accordingly, finds competent evidence of a current disorder. STRs in May 1973 indicate the Veteran was diagnosed as having wry neck (a painfully twisted and tilted neck) and prescribed vallum and a neck collar. In September 1974, the Veteran was treated for pain, tenderness, and spasms on the left side of his neck. The Veteran also stated he had discomfort when moving his head to the left. See STRs dated May 1973 and September 1974. Post-service VA treatment records indicate the Veteran has suffered from chronic neck pain that worsens upon movement for approximately 40 years (or approximately 1975). The Veteran also reported seeing a private chiropractor, Dr. Slater, every other day for two weeks for neck pain. See July 2015, VA treatment records. In August 2016, a VA examination for the neck was obtained. The VA examiner noted pain during extension and right and left lateral flexion but found the Veteran did not have a current diagnosis. The examiner also found there was no evidence of an in-service neck injury. The Board finds the August 2016 VA examiner’s opinion inadequate as he inaccurately reported there were no in-service records of a neck injury and the examiner did not have the opportunity to review the January 2015 private treatment records of Dr. Slater or the Veteran’s December 2020 testimony regarding continuity of neck pain. See August 2016, VA examination; December 2020, Hearing transcript; see also Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (a medical opinion is inadequate if it does not take into account the Veteran’s reports of symptoms and history); Reonal, 5 Vet. App. at 460-61 (medical opinions based on an incomplete or inaccurate factual premise are not probative). In light of the forgoing, the Board finds the weight of the competent and probative evidence is at least in equipoise as to whether the Veteran’s neck disorder had its onset during or is otherwise related to active service. The Board finds the Veteran’s lay statements that left side neck pain began during and continued since discharge from service to be competent and credible, and therefore, accords it high probative weight. See December 2020, Hearing transcript; Jandreau, 492 F.3d at 1377. Resolving all reasonable doubt in favor of the Veteran, the Board finds service connection for a neck disorder is warranted. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 57-58. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Straughn, 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.