Citation Nr: 21011194 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 17-10 119 DATE: March 1, 2021 ORDER Entitlement to service connection for right ear hearing loss is granted. FINDING OF FACT The preponderance of the evidence shows that the Veteran’s right ear hearing loss was incurred during his period of service. CONCLUSION OF LAW The criteria for an award of service connection for right ear hearing have been met. 38 U.S.C. §§ 1110, 1131, 1153, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1961 to March 1966. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2020, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge (VLJ). A copy of the transcript is of record. The issue was previously before the Board in June 2020 and remanded for a VA opinion. The Board finds that the November 2020 VA audiology examination is adequate for adjudication. The Board finds that there has been substantial compliance. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Entitlement to service connection for right ear hearing loss is granted. 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 (2012); 38 C.F.R. § 3.303. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303 (a), (b), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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). To establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331(Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence considering the entirety of the record. The standard of proof to be applied in decisions on claims for veterans’ benefits is outlined in 38 U.S.C. § 5107 (2012). 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). For VA purposes, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is between 0 and 20 decibels, and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran underwent a VA examination in January 2020. The pure tone thresholds, in decibels, are as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 50 65 65 60 The average pure tone threshold was 60 decibels in the right ear. His word recognition score using the Maryland CNC test was 68 percent in the right ear. The Veteran’s right ear hearing loss meets the criteria to be considered a disability for VA purposes. 38 C.F.R. § 3.385. Thus, the first element of a service connection claim is satisfied. Shedden, 381 F.3d at 1166-67. The Veteran consistently argued that his hearing loss started in service. He competently and credibly testified that he had constant ear problems in service and never complained. Also, as a flight deck troubleshooter, he worked 14-hour days, and sometimes at night around planes, without wearing hearing protection, in Guam because they would slide out because of the weather. Before and after service, he worked with metal and air conditioning at large hotels, bank buildings, and hospitals and was not around noise. The Board finds the Veteran’s statements regarding his in-service noise exposure to be both competent and credible. Layno v. Brown, 6 Vet. App. 465 (1994); Barr, 21 Vet. App. 303, 308 (2007). The second element of a service connection claim is satisfied. Shedden, 381 F.3d at 1166-67. The Veteran’s personnel documents confirm that he was a flight deck troubleshooter and service-connection tinnitus and for left ear hearing loss was granted based on a finding that he was exposed to hazardous military noise in service. Thus, the second element of a service connection claim is satisfied concerning both issues. Shedden, 381 F.3d at 1166-67. During the November 2020 examination, the Veteran reported difficulty with communication and understanding people. The examiner rendered a negative nexus to service and explained that There was no shift in hearing thresholds beyond normal test variability when comparing the two available audiograms in the STRs on March 01, 1966, and March 03, 1966. Thresholds for the right ear were normal on both. Since hearing tests were completed in 1966, there is a possibility that America Standard Association (ASA) units were used. If those thresholds were converted to International Standards Organization-American National Standards Institute (ISO-ANSI) units, the thresholds remain within normal limits. There is no report of complaint or treatment for right ear hearing loss or decrease in the STRs or at separation. Although the Veteran had noise exposure and the relationship between noise and auditory damage is well established, auditory damage is not conceded based on noise alone. There must be a nexus of auditory damage to relate the hearing loss to military noise exposure. The Board finds the VA audiological examiner’s findings unpersuasive as to the Veteran’s right ear hearing loss and assigns little probative value to his negative nexus opinion. Jones v. Shinseki, 23 Vet. App. 382, 389-90 (2010). The examiner relied on the normalcy of the Veteran’s hearing during service and separation (even after the conversion of ISO to ANSI) and neglected to consider the Veteran’s competent and credible statements of in-service hearing loss that continued after service. The probative evidence of record is void of any other concurrent causes for the Veteran’s current right ear hearing loss. Furthermore, the Veteran has continuously held that he experienced hearing loss in service, and he has experienced the continuity of symptoms since then. Hearing loss is a chronic condition, as outlined in 38 C.F.R. § 3.309 (a). Therefore, the theory of the continuity of symptomatology is applicable. 38 C.F.R. § 3.303(a), (b); Walker, 708 F.3d 1331. (Continued on the next page)   As the Board finds the Veteran’s lay statements regarding the onset and continuity of his right ear hearing loss to be both competent and credible, a grant based on the continuity of symptomatology is warranted. Accordingly, the Board finds that the preponderance of the evidence is in favor of service connection for right ear hearing loss. 38 U.S.C. § 5107 (b). The claim is herein granted. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Stevens, 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.