Citation Nr: 21015031 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 13-16 972 DATE: March 16, 2021 ORDER Entitlement to service connection for a right ear hearing loss disability is granted. REMANDED Entitlement to a compensable rating for hearing loss, left ear, associated with residuals of mastoiditis with surgery, left ear, is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, the Veteran’s right ear hearing loss disability was incurred during service. CONCLUSION OF LAW The criteria for entitlement to service connection for a right ear hearing loss disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1963 to December 1966. In September 2019, the Board denied entitlement to service connection for a right ear hearing loss disability and to a compensable rating for hearing loss, left ear, associated with residuals of mastoiditis with surgery, left ear. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In August 2020, pursuant to a Joint Motion for Remand (JMR), the Court vacated the Board’s September 2019 denial and remanded the matter to the Board for compliance with the instructions included in the parties’ JMR. The case was returned to the Board for further appellate action. Entitlement to service connection for a right ear hearing loss disability The Board finds that the Veteran has a right ear hearing loss disability that is related to in-service acoustic trauma, thus warranting an award of service connection. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303(a). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The record in this case is clear as to whether the Veteran has a right ear hearing loss disability. The July 2011 and June 2017 VA examinations showed hearing thresholds of 40 decibels or greater for the right ear at multiple frequencies from 500 to 4000 Hertz (Hz). The Board finds that the Veteran has a current diagnosis of hearing loss for VA purposes. 38 C.F.R. § 3.385. Thus, the first element of service connection, the existence of a current disability, is satisfied. Concerning the in-service event, illness, or injury, the Veteran’s STRs contain a November 1966 separation examination wherein the Veteran reported hearing loss and ear trouble. The STRs do not contain any other complaints, diagnosis or findings of right ear hearing loss. The in-service examinations of August 1966 and November 1966 show that auditory threshold was not 40 decibels or greater in any of the frequencies 500, 1000, 2000, 3000, 4000 Hz; or 26 decibels or greater in at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz. The Veteran has stated that while in service he was exposed to loud noises to include artillery and a close-range explosion during service. See August 2011 private treatment record; January 2010 VA Form 21-4138. The Board finds that the Veteran has provided credible and competent statements regarding his noise exposure during service. The Board finds that the first and second elements of the service connection analysis are satisfied. Thus, the remaining question before the Board is whether there is a nexus between the current disability and service. The Veteran underwent a VA examination in June 2017. In a March 2018 addendum opinion, the audiologist opined that the Veteran’s right ear hearing loss disability was less likely than not related to his noise exposure during active service. To support this opinion, the audiologist noted that the Veteran’s separation examination showed pure-tone thresholds well within normal limits. The audiologist further explained that the audiogram is the objective standard for noise injury and that normal thresholds at separation show that the Veteran did not incur a right ear hearing disability during service. The Board denied service connection in September 2019. However, in the August 2020 JMR, the Court found that the Board did not provide an adequate statement of reasons and bases as to whether the VA medical opinion adequately addressed the Veteran’s lay statements regarding right ear hearing loss. The case was remanded to the Board. The Veteran submitted a private medical opinion by Dr. D.V. in November 2020. The examiner noted that audiometric testing revealed sensorineural hearing loss in the right ear, which is consistent with noise exposure. He opined that due to the Veteran’s noise exposure, including artillery fire, his right ear hearing loss is more likely than not related to service. When the evidence of record contains conflicting medical opinions, it is the responsibility of the Board to assess the credibility and weight to be given to the evidence. Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The Board may favor the opinion of one competent medical expert over another if his or her statement of reasons and bases is adequate to support that decision. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Having considered the evidence of record, and after affording the Veteran the benefit of the doubt, the Board finds that it is at least as likely as not that the Veteran’s current right ear hearing loss disability was incurred in service. The March 2018 VA examiner’s opinion is opposed to this conclusion, but the Board finds that the contrary private opinion of November 2020 by Dr. D.V. deserves at least equal probative value. The November 2020 private medical opinion offered an adequate statement of reasons and bases for its conclusions. It addressed the Veteran’s reported history of in-service noise exposure, namely, artillery fire. By contrast, the Board finds that March 2018 VA opinion is inadequate because it did not address the Veteran’s lay statements regarding in-service noise exposure. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Furthermore, the mere absence of hearing loss at separation from service is insufficient to deny an award of service connection. See Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In conclusion, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s right ear hearing loss disability had its onset during active service. Accordingly, the Board must resolve reasonable doubt in the Veteran’s favor and finds that service connection for a right ear hearing loss disability is warranted. 38 U.S.C. § 5107 (b); 39 C.F.R § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to a compensable rating for hearing loss, left ear, associated with residuals of mastoiditis with surgery, left ear, is remanded. As the Board has granted service connection for a right ear hearing loss disability, the RO must be afforded an opportunity to assign a rating for bilateral hearing loss. As this rating will impact the evaluation of the left ear hearing loss disability, this claim must be remanded as well. The matter is REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Adjudicate the claim for entitlement to a compensable rating for bilateral hearing loss. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Minaya, 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.