Citation Nr: 21023660 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-42 716 DATE: April 21, 2021 ORDER Entitlement to service connection for right ear hearing loss is granted. FINDING OF FACT The evidence is in equipoise as to whether the Veteran’s right ear hearing loss is related to service. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for entitlement to service connection for right ear hearing loss have been met. 38 U.S.C. §§ 1154(a), 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 2000 to September 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. In January 2019, the Board remanded this matter to the RO for further development. As an initial matter, the Board notes that a March 2021 docketing letter was not properly copied to the Veteran’s representative nor has the Veteran’s representative provided an Informal Hearing Presentation (IHP) in support of the present claim. However, the Board finds there is no prejudice to the Veteran in proceeding with the issuance of this decision as this appeal is granted in full. Entitlement to service connection for right ear hearing loss The Veteran contends that he developed right hear hearing loss as a result of in-service noise exposure. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurrent in service. 38 C.F.R. § 3.303(d). Generally, to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including hearing loss, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 C.F.R. §§ 3.307, 3.309. Alternatively, service connection may also be granted for chronic conditions that have manifested continuous symptomology since separation of service. Id. Impaired hearing will be considered a disability for purposes of laws administered by VA when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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. The failure to meet these criteria at the time of a Veteran’s separation from active service is not necessarily a bar to service connection for hearing loss disability. A veteran “may nevertheless establish service connection for a current hearing loss disability by submitting evidence that the current disability is related to service.” Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993); see 38 C.F.R. § 3.303(d). 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). Turning to the evidence of record, the Veteran has a diagnosis of right ear hearing loss for VA purposes under 38 C.F.R. § 3.385, as shown by his right ear speech discrimination score of 88 percent under the Maryland CNC Test during the May 2019 VA examination. Thus, a current disability is established. Next, the Board concedes that the Veteran was exposed to excessive noise while performing his duties as an Infantryman in service. Specifically, the Veteran testified that he was exposed to excessive noise both during his infantry training and during his deployment in Iraq from improvised explosive devices, mortar rounds, and tank weapons. See February 2017 Board hearing transcript, pp 7-8. Significantly, as the Veteran had combat service in Iraq, as shown by his Combat Infantryman Badge, noise exposure is presumed during combat. 38 U.S.C. § 1154(b). Moreover, the Veteran is competent to report in-service noise exposure and his assertions are consistent with the type and circumstances of his military service. Therefore, the remaining inquiry is whether the Veteran’s current right ear hearing loss is related to his in-service noise exposure. In this regard, the Veteran has provided competent and credibly lay statements concerning the onset and continuity of his symptoms. Specifically, he reported that he began to experience right ear hearing loss in service. See July 2012 VA Form 21-526, Veteran’s Application for Compensation or Pension. Further, he testified during the February 2017 Board hearing that after his discharge from service, he lived with his parents and they observed and commented on his hearing problems. See February 2017 Board hearing transcript, p 11. Notably, the Veteran also reported right ear hearing difficulties years prior to his initial service connection claim. See May 2009 VA treatment record. This evidence lends credibility to the Veteran’s assertions that he has continued to experience hearing loss since service. Moreover, as the Veteran’s competent statements concerning his hearing loss are internally consistent, the Board has no reason to doubt the credibility of these statements and they are given great probative weight. The Board is aware of the July 2013 and May 2019 VA opinions of record. As discussed in the January 2019 Board decision, the July 2013 VA opinion is inadequate because the examiner provided conflicting medical opinions regarding whether the Veteran’s hearing loss is related to service. As such, the Board assigns no probative weight to the July 2013 opinion. The Board also finds that the May 2019 VA opinion is inadequate. The May 2019 VA examiner found that the Veteran’s right ear hearing loss was not related to service because the Veteran’s service treatment records (STRs) did not show a significant change in hearing based upon his in-service entrance and exit audiograms. The examiner also explained that hearing loss due to noise exposure is typically evident as a “notch” configuration of hearing and the loss is located between 3000 to 6000 Hertz whereas the Veteran’s present hearing loss is at 8000 Hertz in the right ear, which is not typically associated with noise exposure. This opinion, in part, appears to be based on the absence of any documented hearing loss in service or at separation from service. However, the Veteran does not have to show hearing loss at the time of discharge to establish service connection. Hensley v. Brown, 5 Vet. App. at 155. Further, it does not appear that the Veteran was given an opportunity to describe the onset and history of his hearing loss prior to the VA examiner’s negative nexus determination nor does it appear that the VA examiner considered the Veteran’s lay assertions of continuing to experience right ear hearing loss since service. As such, the Board finds that the May 2019 VA opinion has diminished probative value. In light of the deficiencies with the medical opinions of record and the Veteran’s competent and credible lay statements attesting to continuity of symptoms for his right ear hearing loss, the Board finds that the evidence is equipoise, requiring that reasonable doubt be resolved in his favor. See 38 U.S.C. § 5107(b); Wise v. Shinseki, 26 Vet. App. 517 (2014). Therefore, the Board finds that entitlement to service connection for right ear hearing loss is warranted. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda Purcell, 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.