Citation Nr: 21006229 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 15-18 592 DATE: February 3, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT The most probative evidence is at least in relative equipoise as to whether the Veteran’s bilateral hearing loss had onset during or is otherwise etiologically related to active military service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have been 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 U.S. Army from November 1961 to November 1963. He died in July 2017, and the appellant is his widow. This matter comes before the Board of Veterans Appeals (Board) on appeal from n August 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Hearing loss will be considered a disability for VA purposes when the threshold level in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz (Hz) is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores utilizing recorded Maryland CNC word lists are less than 94 percent. 38 C.F.R. § 3.385; see also Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board finds that the most probative evidence is at least in relative equipoise as to whether the Veteran’s bilateral hearing loss had its onset during or is causally related to military service. Therefore, service connection is warranted. The record reflects a diagnosis of bilateral hearing loss meeting VA requirements. See 38 C.F.R. § 3.385; VA examination, May 2016. The Veteran’s DD Form 214 shows he was a rifle marksman in service and noise exposure is conceded. Service audiograms show that the Veteran’s hearing thresholds at enlistment were 15, 15, and 20, in the right ear and 5, 5, and 15, in the left ear at the thresholds of 1000, 2000, and 4000 hertz, respectively. The thresholds at 3000 hertz were not tested. At discharge, the Veteran’s hearing thresholds were 0, 0, and 0, in the right ear and 0, 0, and 0, in the left ear at the thresholds of 1000, 2000, and 4000 hertz, respectively. The Veteran received a VA examination in May 2016. The examiner provided a negative opinion, noting an absence of significant threshold shifts in service. The Veteran also provided a private opinion. The private examiner reviewed the Veteran’s medical record and military history and opined that his hearing loss and tinnitus was directly related to his military service. See Medical Treatment Record – Non-government Facility, received August 2015. The Veteran’s claim for service connection for tinnitus was previously granted in a May 2016 rating decision. The law is clear. Pursuant to the “benefit-of-the-doubt” rule, where there is “an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter,” the Veteran shall prevail upon the issue. 38 U.S.C. § 5107 (b). The Board finds that the most probative evidence, including the private opinion and military records, is at least in relative equipoise as to whether the Veteran’s bilateral hearing loss had its onset during or is causally related to service. With the benefit of the doubt resolved in the Veteran’s favor, a grant of service connection for bilateral hearing loss is warranted. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Javed 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.