Citation Nr: 21066940 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 16-11 571 DATE: November 2, 2021 ORDER Entitlement to service connection for left ear hearing loss is granted. FINDING OF FACT The competent and credible evidence of record is at least in equipoise that the Veteran's left ear hearing loss is attributable to the Veteran's service. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for left ear hearing loss have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty service from June 1976 to June 1979. This matter comes before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) on appeal from a Regional Office (RO) rating decision dated in July 2013. The Board denied entitlement to service connection for seven disabilities (left foot, right foot, left knee, right knee, left leg shin splints, right leg shin splints, and back) in January 2019, and remanded entitlement to service connection for bilateral hearing loss and an increased rating for right foot scar. In September 2019, the United States Court of Appeals for Veterans Claims (Court) vacated the January 2019 Board decision denying service connection for the seven disabilities, and the Board remanded those claims to the AOJ in March 2020. In June 2020, the AOJ granted service connection for right ear hearing loss, and in July 2020, service connection for the seven aforementioned disabilities was granted. A March 2021 Board decision denied an increased rating for a right foot scar. Therefore, those issues are no longer on appeal; the remaining issue is entitlement to service connection for left ear hearing loss. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Entitlement to service connection for left ear hearing loss The Veteran has a current diagnosis of left ear hearing loss for VA purposes under 38 C.F.R. § 3.385. See June 2021 VA examination. Thus, the first element of service connection has been established. The Veteran contends that his hearing loss began in service and he has experienced continuity of symptoms ever since. He is competent to report that he experienced symptoms of degraded hearing during his time in the service until the present. See September 2012 Lay Statement. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Board concedes the Veteran's exposure to noise in service. His service records and lay statements reflect that he had a MOS of lineman and radio operator and was exposed to artillery fire. See June 2021 VA Examination. While the Veteran's hearing loss was not diagnosed during service and did not manifest to a compensable degree within the applicable presumptive period, the Veteran credibly and competently attested that the condition began in service, and that there has been continuity of symptoms since service. On remand, the Veteran was afforded a VA examination in May 2021. The examiner found that the Veteran's left ear hearing loss was less likely than not due to service. By way of rationale, the examiner found no permanent positive threshold shift in service. The RO found that opinion did not respond to the Board remand instructions and requested an addendum opinion to address the inquiries of the Board. The June 2021 addendum opinion found that the Veteran's left ear hearing loss was less likely than not due to service. By way of rationale, the examiner found that the Veteran's left ear hearing loss pre-existed service, indicated that it was aggravated beyond normal progression but contradicted herself in the rationale that it was not aggravated beyond normal progression. Though the May and June 2021 VA examinations provided unfavorable opinions with regard to service connection for the Veteran's left ear hearing loss, the Board finds these opinions to be inadequate. The March 2021 Board remand found that the Veteran is entitled to presumption of soundness as the Veteran's audiogram recorded at entrance did not meet the statutory definition of a disability for hearing loss. 38 C.F.R. § 3.385. Moreover, each examiner seemingly relied on the absence of complaints, treatment and significant threshold shifts to deny service connection for left ear hearing loss, though each concede in-service noise exposure. In addition to the inadequate opinions provided over the course of the appeal, the Veteran has submitted a myriad of lay statements in support of his claim that were not addressed by any of the examiners. See September 2012 Lay Statement; see also August 2013 Lay Statements of the Veteran's Wife and Son. The Veteran stated that he attempted to reenter military service in 1988 but was denied due to his hearing loss. See July 2012 Veteran Statement. Based upon the Veteran's competent and credible evidence on continuous symptoms of hearing loss since service, the Board finds that the evidence of record is at the very least in equipoise, requiring that reasonable doubt be resolved in the Veteran's favor. See 38 U.S.C. § 5107 (b); Wise v. Shinseki, 26 Vet. App. 517 (2014). Therefore, entitlement to service connection for left ear hearing loss is warranted. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kelsey Love, 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.