Citation Nr: 21025955 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 18-42 824A DATE: April 29, 2021 ORDER New and material evidence having been submitted, the claim of entitlement to service connection for left ear hearing loss is reopened. Entitlement to service connection for left ear hearing loss is granted. FINDINGS OF FACT 1. In an October 2009 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for left ear hearing loss. The Veteran did not appeal or submit new and material evidence within a year of the decision. Therefore, the October 2009 rating decision became final. 2. At the time of the October 2009 rating decision, the record did not contain the Veteran’s detailed Board hearing testimony that he did not have any hearing loss in his left ear prior to service and that his symptoms of left ear hearing loss began in service. This evidence is new and material and raises a reasonable possibility of substantiating the claim. 3. The Veteran’s left ear hearing loss began in service and has continued to the present. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for left ear hearing loss. 38 U.S.C. § 7105 (2018); 38 C.F.R. §§ 3.104, 3.156, 20.202 (2020). 2. The criteria to establish service connection for left ear hearing loss have been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1962 to September 1969. He appeals a June 2017 rating decision by the Agency of Original Jurisdiction (AOJ) denying service connection for left ear hearing loss. A Board hearing was held in April 2021. A transcript is of record. Service Connection – Left Ear Hearing Loss A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), claims for chronic diseases enumerated in 38 C.F.R. § 3.309(a) benefit from a relaxed evidentiary standard. See Walker v. Shinseki, 708 F.3d 1331, 1339 (Fed. Cir. 2013). Hearing loss is such a disease. To show a chronic disease in service, the record must contain a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Every Veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment, and was not aggravated by such service. 38 U.S.C. § 1111. To rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The Veteran is not required to show that the disease or injury increased in severity during service before VA’s duty under the second prong of this rebuttal standard attaches. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). In the instant case, the Board notes that the AOJ found that the Veteran had a pre-existing left ear hearing loss disability. However, the Veteran’s September 1962 service entrance examination did not show any left ear hearing loss disability. In fact, the Veteran scored a 15/15 on the whisper test for the left ear. See September 1962 service treatment record (STR). No audiogram was performed at the entrance examination. Id. As such, the presumption of soundness attaches, and the Board will address whether the Veteran has a current left ear hearing loss disability that his related to his service. The Veteran has left ear hearing loss for VA purposes, and he was exposed to loud noises in service. See October 2009 VA examination report; see also August 2020 VA examination report. The September 1969 separation examination reflects that the Veteran had left ear hearing loss for VA purposes. See 38 C.F.R. § 3.385. The Veteran reported at his April 2021 Board hearing that he had no hearing loss prior to his service. See Board Hearing Tr. at 2. Such testimony is consistent with the Veteran’s September 1962 service entrance examination, which contained no evidence of any left ear hearing loss. Further, the Veteran testified as to in-service noise exposures while serving aboard Navy ships. See Board Hearing Tr. at 3. This testimony is consistent with the October 2009 VA examiner’s opinion relating the Veteran’s now service-connected right ear hearing loss to his in-service noise exposure. See October 2009 VA examination report, at 4. In addition, the Veteran reported at his April 2021 Board hearing that he has had left ear hearing loss since his service. See Board Hearing Tr. at 3-4. Therefore, resolving reasonable doubt in the Veteran’s favor, the Board finds the Veteran had left ear hearing loss in service that he continued to experience ever since. Accordingly, the Board finds that the Veteran’s claim for service connection for left ear hearing loss has met the relaxed evidentiary requirements under 38 C.F.R. § 3.303(b). As such, the criteria for service connection for left ear hearing loss have been met. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Breitbach, 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.