Citation Nr: 21071379 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 17-51 115 DATE: November 30, 2021 ORDER Entitlement to service connection for right ear hearing loss is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, symptomatology associated with his right ear hearing loss had its onset in service and continued thereafter. CONCLUSION OF LAW The criteria for a grant of service connection for hearing loss in the right ear, on a presumptive basis, are met. 38 U.S.C. §§ 1110, 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 from August 1976 to August 1980. This matter comes before the Board of Veteran's Appeals (Board) from a May 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in April 2019 when the claim was remanded for development. The Board finds the April 2019 remand directives have been substantially complied with, and the matter is again before the Board. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for right ear hearing loss The Veteran seeks service connection for hearing loss in his right ear. In favor of his claim the Veteran asserts that he was exposed to hazardous noise while in service, that he noticed hearing issues during and after service and that he currently has hearing loss. See NOD and Form 9; see also statement submitted along Congressional Inquiry of January 2019. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease 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). For VA purposes, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies at 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of those 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. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran's medical records have been associated with the claims file. These show that VA examined the Veteran's hearing in May 2017 and November 2019. Hearing Loss and Tinnitus Disability Benefits Questionnaire (Hearing Loss DBQ) of May 2017 and November 2019. The Hearing Loss DBQ of May 2017 and November 2019 show the Veteran has hearing loss in his right ear for VA purposes. As such, the Veteran's claim surpasses the first prong of the Shedden service connection test, a current disability. The Board conceded the Veteran's hazardous noise exposure during service, based on the Veteran's credible reports of in-service noise exposure. See April 2019 Board decision. As such, his claim surpasses the second prong of the Shedden service connection test, an in-service incurrence. Thus, the question before the Board is whether the probative evidence of record supports the finding that the Veteran's current hearing loss in his right ear is at least as likely as not related to his military service noise exposure; the nexus requirement of the Shedden service connection test. Here, VA examiners have opined that the Veteran's hearing loss in his right ear is not at least as likely as not related to his military service. See Hearing Loss DBQ of May 2017 and November 2019. The Board found the examiner's opinion in the Hearing Loss DBQ of May 2017 to be inadequate for adjudication purposes. See April 2019 Board decision. As such, the Board affords it no probative value. In November 2019 another VA examiner opined that the Veteran's right ear hearing loss is not at least as likely as not related to service. In favor of this opinion, the examiner noted that the Veteran's audiograms performed while he was in the service did not show a "significant" shift in sensitivity. He also noted that although two audiograms performed in 1977 showed a clinically significant threshold for a single frequency, that the finding was not consistent with hearing loss for VA purposes and that single frequency had reverted to normal at the time of the Veteran's separation examination of 1980, as shown in his audiogram for separation. See medical opinion in Hearing Loss DBQ of November 2019. The Board finds this medical opinion of November 2019 to be inadequate for adjudication purposes as the examiner did not provide a complete rationale for the opinion expressed and did not address the Veteran's lay statements of having hearing issues since his service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); Buchanan v. Nicholson, 451 F. 3d 1331, 1336-37 (Fed. Cir. 2006); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2010); Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). Notably, the examiner did not explain how a "normal" hearing threshold for a frequency at separation would be probative to the question of the likely etiology of the Veteran's hearing loss when that same frequency had been previously noted as showing a significant shift. Additionally, the examiner did not address this shift in hearing thresholds, in view of the Veteran's lay statements regarding symptomatology since service. As the November 2019 medical opinion has been found to be inadequate for adjudication purposes, the Board affords it no probative value as to the likely etiology of the Veteran's hearing loss. Therefore, in view of the above, the Board finds that there is no probative evidence of record addressing the likely etiology of the Veteran's hearing loss in his right ear. Thus, the Veteran's claim does not surpass the third prong of the Shedden service connection test, the nexus requirement. Notwithstanding, the Board notes that alternatively to the nexus requirement of the Shedden service connection test, certain chronic diseases, including hearing loss, are considered organic diseases of the nervous system, and may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service or with continuous symptomatology. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309 (a). Here, the Veteran has competently and credibly reported having experienced symptomatology associated with his hearing difficulties since service and thereafter. The Board observes that the Veteran is not competent to self-diagnose with hearing loss. However, he is competent to report having difficulties with his hearing since service, which is symptomatology. Layno v. Brown, 6 Vet. App. 465 (1994), Charles v. Principi, 16 Vet. App. 370, 374-375 (2002), see also Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Additionally, while Veteran's service treatment records (STRs) do not show audiogram results consistent with a hearing disability for VA purposes during service, these do show that in 1977, during service, the Veteran experienced a significant shift at a specific hearing frequency in his right ear. Additionally, the second page of the Veteran's separation examination shows the Veteran was noted to have "bilateral high frequency hearing loss." See generally STRs, to include audiogram of 1977 and report of examination for separation of 1980. The Board finds the objective finding noted in the 1977 audiogram and the note of "bilateral high frequency hearing loss" in the separation examination of 1980, to be probative evidence in support of the Veteran's statements regarding hearing loss symptomatology since service and thereafter. Thus, in light of the above, the Board finds the Veteran's lay statements regarding the onset and continuity of his hearing difficulties, competent, credible, and affords them high probative value. Accordingly, in light of the Veteran's competent and credible statements regarding his hearing difficulties onset and continuity, and resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for hearing loss in the right ear is warranted on a presumptive basis, as symptomatology associated with the chronic condition had its onset in service and has continued ever since. 38 C.F.R. §§ 3.307, 3.309 (a). KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Gonzalez-Maldonado 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.