Citation Nr: 21066433 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 18-47 364 DATE: November 1, 2021 ORDER Service connection for right ear hearing loss is granted. FINDING OF FACT The weight of the evidence is at least in equipoise as to whether current right ear hearing loss is related to in-service noise exposure. CONCLUSION OF LAW The criteria for service connection for right ear hearing loss are met. 38 U.S.C. §§ 1110, 5107; 38C.F.R. §§3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1966 to February 1972. This case is before the Board of Veterans' Appeals (Board) on appeal from a December 2017 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In October 2021, the Veteran testified at a Board hearing. The record demonstrates that the criteria for service connection for right ear hearing loss are met. Service connection will be granted for a current disability that resulted from an injury, disease, or aggravation while in active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Generally, service connection requires (1) a present disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the present disability and the in-service incurrence or aggravation of a disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran is competent to report symptoms and experiences he can observe. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA must 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); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 C.F.R. § 3.102. The record demonstrates that the criteria for service connection for right ear hearing loss are 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 38 C.F.R. § 3.385, which provides that service connection for impaired hearing shall not be established until the hearing loss meets pure tone or speech recognition criteria. Under this regulation, the 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 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 Consonant-Vowel-Nucleus-Consonant (CNC) Test are less than 94 percent. 38 C.F.R. § 3.385. A December 2017 VA examination demonstrates that the requisites for hearing loss for VA purposes are met in the right ear. See 38 C.F.R. § 3.385. The Board, accordingly, finds competent evidence of a current disability of right ear hearing loss. The Veteran contends that he was exposed to hazardous noise in the performance of his daily duties. VA conceded in-service noise exposure based on the Veteran's military occupational specialty (MOS) as a Rotary Wing Aviation Unit Commander; notably, the Veteran's left ear hearing loss is service-connected. Service treatment records demonstrate normal right ear hearing in the entrance and exit examinations; however, in-service audiograms show a trend toward worsening right ear hearing, and the February 1972 exit examination demonstrates a significant positive threshold shift in the right ear. DATE 1000 2000 3000 4000 Avg (1000-4000 Hz) Aug. 1966 RIGHT -5 -5 X -5 -5 LEFT -5 -5 X -5 -5 Aug. 1967 RIGHT 0 0 X 10 3.33 LEFT 0 0 X 0 0 Feb. 1969 RIGHT 0 0 5 10 3.75 LEFT 5 5 10 10 7.5 June 1970 RIGHT -5 -5 -5 15 0 LEFT -5 -5 -5 25 2.5 July 1971 RIGHT -10 -10 10 20 2.5 LEFT -10 -10 10 25 3.75 Feb. 1972 RIGHT 10 5 10 20 11.25 LEFT 5 5 15 30 13.75 The December 2017 VA examiner determined the Veteran's right ear hearing loss was not at least as likely as not caused by or a result of an event in military service despite conceding the Veteran's exposure to hazardous noise. The examiner's rationale was that the Veteran separated from military service in 1972 with normal hearing sensitivity, and there was no medical evidence in the 45 years since separation to support the contention of hearing loss due to military service. The Board notes that the lack of evidence showing that the Veteran exhibited a right ear hearing disability during service is not fatal to his claim. The laws and regulations do not require in-service complaints or treatment for hearing loss to establish service connection. Ledford v. Derwinski, 3 Vet. App. 87 (1992). Where there is no evidence of a hearing disability until many years after service, "[i]f evidence should sufficiently demonstrate a medical relationship between the appellant's in-service exposure to loud noise and his current disability, it would follow that the appellant incurred an injury in service." Hensley v. Brown, 5 Vet. App. 155, 160 (1993). (Continued on the next page) In light of the Veteran's in-service noise exposure, the diagnosis of a right ear hearing loss disability under 38 C.F.R. § 3.385, and the fact that the exit examination showed a decrease in right ear hearing sensitivity (and only slightly less than the sensitivity decrease experienced in the left ear, which the December 2017 VA examiner deemed sufficiently significant for a positive nexus opinion), the Board finds that the competent evidence is in relative equipoise as to whether current right ear hearing loss is related to active service. Accordingly, resolving reasonable doubt in his favor, the Board concludes that service connection for right ear hearing loss is warranted. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53-56; 38 C.F.R. § 3.102. The claim is granted. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Costa, 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.