Citation Nr: 21027434 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 15-43 134 DATE: May 5, 2021 ORDER Entitlement to service connection for right ear hearing loss is granted. FINDING OF FACT The Veteran's right ear hearing loss is etiologically related to acoustic trauma sustained in active service. CONCLUSION OF LAW With the resolution of 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. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from July 1982 to June 1986. In August 2018, the Board remanded the issue of entitlement to service connection for bilateral hearing loss for evidentiary development. During development, an April 2020 rating decision granted entitlement to service connection for left ear hearing loss and that issue is no longer on appeal. The remaining claim for right ear hearing loss has since been returned to the Board for further consideration. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in-service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection for certain chronic diseases, including sensorineural hearing loss, may be presumed if they are manifest to a compensable degree within one year following the date of separation from active service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in-service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in-service is not adequately supported then a showing of continuity of symptomatology after discharge from service is required to support the claim. 38 C.F.R. § 3.303(b). But to establish entitlement to service connection based on continuity of symptomatology, the claimant must have one of the "chronic" diseases specifically enumerated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; 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). Entitlement to service connection for right ear hearing loss As noted above, service connection for left ear hearing loss was granted during prior development. The Board observes that the Veteran's DD-214 lists his military occupational specialty as a combat engineer. He contends that his hearing loss is due to acoustic trauma sustained in-service, including noises such as explosions and gunfire. For the purpose of applying the laws administered by the VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000 or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 decibels or greater; or when speech recognition scores utilizing the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran's December 1981 entrance examination revealed the following results: Frequency 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Left 15 5 5 5 5 Right 5 0 0 5 5 Another examination from July 1982 revealed the following results: Frequency 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Left 5 5 5 5 5 Right 5 5 5 5 15 The Veteran's May 1986 separation examination revealed the following results: Frequency 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Left 15 15 15 15 30 Right 15 15 15 15 15 The Veteran's service treatment records are otherwise silent as to any audiological problems. The Veteran received a VA audiological examination in June 2013. Audiological testing revealed the following results: Frequency 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Left 10 10 20 30 35 Right 10 20 15 25 25 Additionally, Maryland CNC Speech Discrimination testing yielded scores of 94 percent for the right ear and 96 percent for the left ear. The VA examiner diagnosed the Veteran with bilateral hearing loss. However, it does not appear that the Veteran suffered from hearing loss disability for VA purposes at the time. See 38 C.F.R. § 3.385. Regardless, the examiner determined that the Veteran's claimed hearing loss is at least as likely as not related to service. The examiner explained that the Veteran's service treatment records, including both his enlistment and separation audiograms, showed a mild drop in hearing acuity. Pursuant to the Board's August 2018 remand, the Veteran was afforded another VA audiological examination in October 2019. Audiological testing revealed the following results: Frequency 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Left 5 20 25 45 40 Right 10 15 10 35 40 Additionally, Maryland CNC Speech Discrimination testing yielded scores of 100 percent for the right ear and 98 percent for the left ear. The VA examiner diagnosed the Veteran with bilateral hearing loss for VA purposes. The examiner concluded that the Veteran's claimed right ear hearing loss is less likely than not attributable to service. The examiner provided the following remarks: The claimant was in demolitions and construction in the Marines. He was assigned to a demolition battalion and was exposed to noise from explosives (TNT, C4). He also fired weapons (blanks) in the field. Hearing protection was not available for these situations. When flying in helicopters he wore earmuffs. He went to the range annually; hearing protection was used. He shoots a shotgun left-handed and a pistol right-handed. Following military service, he worked with the Department of Corrections for 27 years. He was a range officer. He went to the range annually; hearing protection was used. Today, the claimant presents with a mild to severe sensorineural hearing loss 3000 to 8000 Hz in the right ear. As the separation audiogram is within normal limits, this loss is less likely as not a result of military noise exposure. Hearing for pure tones does not worsen following cessation of a given noise [citation omitted]. The Board notes that the examiner found that the Veteran's left ear hearing loss is at least as likely as not attributable to service and provided almost the same rationale as the negative opinion for the right ear. After a careful review of the evidence, lay and medical, the Board finds that the Veteran's right ear hearing loss is at least as likely as not related to acoustic trauma he sustained in service. In this regard, now that a current right ear hearing loss disability for VA purposes has been established, the Board assigns higher probative weight to the June 2013 VA examiner's opinion, which stated that the enlistment and separation audiograms showed a mild drop in hearing acuity. On the contrary, the Board assigns little probative value to the October 2019 VA examiner's negative opinion as to the right ear since it contains essentially the same rationale as the positive opinion for the left ear. It appears that the only difference the examiner found was that the threshold shift in the left ear from entrance to separation was more significant than the right ear. The above audiometric results tend to show that both ears worsened at similar rates both in-service and post-service. Based on the overall evidence, the Veteran likely experienced delayed onset at the higher frequencies in the right ear. Furthermore, while the Board acknowledges that the Veteran was exposed to hazardous noise post-service, the June 2013 VA examiner considered that information, but still concluded that the initial manifestation of the disability was as a result of military service. Based on the foregoing, the Board finds that there is competent and credible evidence to establish a likely continuity of right ear hearing loss symptomatology since service. Therefore, entitlement to service connection for left ear hearing loss is granted. MICHAEL D. LYON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Miller, 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.