Citation Nr: 21011871 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 17-01 705 DATE: March 2, 2021 ORDER Entitlement to service connection for right ear hearing loss is granted. FINDING OF FACT There is at least an approximate balance of positive and negative evidence as to whether the Veteran’s right ear hearing loss is related to his active service CONCLUSION OF LAW The criteria for service connection for left ear hearing loss are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from July 1966 to July 1968. For his meritorious service, the Veteran was awarded (among other awards) the Air Force Medal. This matter is before the Board of Veterans’ Appeal (Board) on appeal from a June 2015 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). Of note, issues considered in previous decisions have either been finally denied by the Board (for service connection for vertigo, for increased rating for spine disability and increased rating for right lower extremity radiculopathy) or have been granted by the RO (for service connection for left ear hearing loss and a total disability rating based on individual unemployability) such that the issue listed above is all that remains for appellate consideration. This claim was previously before the Board in April 2018 and November 2020, in both times, the claim was remanded for further development. The record reflects substantial compliance with the remand directives. To establish direct service connection, there must be competent evidence showing: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the in-service injury incurred or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Generally, a claimant has the responsibility to present and support a claim for benefits. All information, lay evidence, and medical evidence in a case is to be considered by the Board in deciding the claim. When there is an approximate balance of positive and negative evidence regarding any material issue, the claimant is to be given the benefit of the doubt. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be 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); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Hearing loss disability is defined by regulation. For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. Furthermore, clinical hearing loss is shown where the auditory thresholds exceed 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 159. The Veteran is competent to report symptoms and experiences observable by his senses. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154 (a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability benefits. Davidson, 581 F.3d at 1316. The absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. The Veteran contends his right ear hearing loss is related to his active service. The Veteran reported he was exposed to loud noises repeatedly in-service. His military occupational specialty (MOS) was as a veterinarian, he was constantly around loud barking and was not provided with hearing protection. He also reported there was a jet test pad in close proximity to his veterinary office, which shook the building. At a VA examination in August 2016, hearing test results were recorded as follows: HERTZ CNC 1000 2000 3000 4000 Avg % RIGHT 10 35 75 85 51 86% The Veteran’s speech discrimination score for the right ear was 86 percent. These results establish left ear hearing loss in accordance with VA regulations. Accordingly, the first element of service connection, a current diagnosis, has been met with respect to right ear hearing loss. Next, the evidence supports a finding of in-service noise exposure. The Veteran’s MOS was a veterinarian and the VA has conceded exposure to military noise in-service. The second criterion for service connection is met. The final criteria to be met is whether there is a competent link between the Veteran’s current disability and his active service. The Veteran underwent a VA examination in August 2016. The VA examination did not consider the threshold shift found from the Veteran’s December 1965 induction examination compared to his October 1967 periodic examination and May 1968 audiogram. An August 2019 VA addendum opinion incorrectly concluded the Veteran had pre-existing hearing loss and concluded it was a progression of the pre-existing condition. The September 2020 VA addendum opinion also incorrectly reported the Veteran’s right ear hearing loss existed prior to service and was not aggravated in-service. A December 2020 VA addendum opinion concluded that objective evidence of audiograms in-service did not reflect a change in his hearing. The VA examiner concluded this evidence rebuts the Veteran’s lay statements regarding his hearing loss and noise exposure in-service. The VA examiner stated the Veteran’s right ear hearing loss is most consistent with age related hearing loss. The Veteran provided a private opinion regarding his hearing loss. The private opinion concluded the Veteran’s bilateral hearing loss was at least as likely as not related to his active service. The private opinion stated the Veteran’s MOS involved military noise exposure from barking dogs. The private opinion also provided medical literature regarding hearing loss and noise exposure. The private opinion concluded that the Veteran’s hearing loss was related to acoustic trauma during active duty. In cases where there are two different medical opinions, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value. Wilson v. Derwinski, 2 Vet. App. 614, 618; Hatlestad v. Derwinski, 1 Vet. App. 164. Furthermore, the VA has a duty to uphold the benefit of the doubt rule, and in cases where the evidence is in relative equipoise, service connection must be granted. In weighing the two opinions against one another, the Board determines that the evidence for and against the medical nexus question is in relative equipoise. Giving the benefit of the doubt to the Veteran, the Board must resolve reasonable doubt in favor of the Veteran. Thus, the nexus element of service connection has been met. Thus, based on the Veteran’s MOS and statements, the Board finds that the evidence is in relative equipoise as to whether the Veteran’s right ear hearing loss is related to his military noise exposure. The December 2020 VA addendum opinion relied only on the absence of objective evidence in-service, but in Ledford v. Derwinski, it was found the absence of in-service evidence of hearing loss is not fatal to a claim for service connection. The Board applies significant probative value to the Veteran’s MOS, his statements regarding in-service noise exposure, and his private opinion. Accordingly, resolving doubt in favor of the Veteran, the Board finds that the criteria for service connection have been met. Service connection for right ear hearing loss is warranted. The Veteran’s attorney made an argument that tinnitus should have been included under the Veteran’s hearing loss claim. The Veteran’s attorney has represented him since the beginning of this claim; indeed, the September 2014 claim giving rise to this appeal was filed directly by the Veteran’s representative (a claim which contained no mention of tinnitus). At any point, that accredited attorney could have filed a claim for service connection for tinnitus, or pointed to evidence reflecting that such a claim had been raised in conjunction with the issue on appeal. Absent an explicit claim or contentions regarding why it should be considered, a claim for tinnitus is not found to be raised in conjunction with this issue. The claim for service connection for right ear hearing loss is granted. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Mouzakis, 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.