Citation Nr: 21029432 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 17-58 101 DATE: May 13, 2021 ORDER Entitlement to service connection for right ear hearing loss is granted. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, his right ear hearing loss is related to noise exposure during active duty service. CONCLUSION OF LAW The criteria for service connection for right ear hearing loss are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1965 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded the case in November 2020 for additional development. The requested development as to the claim adjudicated below has been completed to the extent possible, and no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for right ear hearing loss is granted. The Veteran is seeking to establish service connection for right ear hearing loss. He contends that his right ear hearing loss is related to hazardous noise exposure during service. 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. 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). The requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a claimant's period of active military service in order for service connection to be granted. The regulation does not necessarily preclude service connection for hearing loss that first met the regulation's requirements after service. Hensley v. Brown, 5 Vet. App. 155 (1993). Thus, a claimant who seeks to establish service connection for a current hearing disability must show, as is required in a claim for service connection for any disability, that a current disability is the result of an injury or disease incurred in service, the determination of which depends on a review of all the evidence of record, including that pertinent to service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304; Hensley, 5 Vet. App. at 159-60. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. After a review of the entire evidentiary record and in light of the applicable legal criteria, the Board affords the Veteran reasonable doubt and grants service connection for right ear hearing loss. With regard to a present disability, a February 2017 VA examination indicates that the Veteran has a diagnosis of right ear hearing loss for VA purposes. As the Veteran has a current diagnosis, the first element of service connection is met. With regard to an in-service injury, the Veteran reported he served as military police with duties that included guarding the flight line without hearing protection. His form DD 214 reflects that he completed an Air Police course. Additionally, VA has awarded the Veteran service connection for tinnitus and right ear hearing loss, finding that the Veteran was exposed to hazardous noise in service. As such, the Board finds that there is credible evidence of in-service noise exposure and the second element of service connection is met. As for the third element of service connection, evidence of a nexus between the Veteran's right ear hearing loss and service, the Board notes there is both negative and positive medical evidence regarding the etiology of the Veteran's right ear hearing loss. In the February 2017 VA audiological examination, the VA examiner opined that the Veteran's right ear hearing loss was less likely than not related to service. The examiner explained that two audiograms from service revealed no threshold shifts when compared. While military noise exposure included jet engines and weapons fire, occupational noise exposure before and after military service included farming, construction, and limited factory work. Recreational noise included shooting, lawncare, riding ATVs and motorcycles, and woodcutting. The examiner noted that service treatment records did not show hearing loss or significant changes in hearing thresholds, nor did they reveal any complaints of or treatment for right ear hearing loss. The examiner noted that the Institute of Medicine (IOM) panel concluded that based on their current understanding of auditory physiology, a prolonged delay in the onset of noise-induced hearing loss was unlikely. For these reasons, the examiner found there was no evidence on which to conclude that the Veteran's right ear hearing loss was the result of his military service. In an October 2020 Informal Hearing Presentation (IHP), the Veteran's representative asserted that the February 2017 VA examiner had failed to consider findings from the American College of Occupational and Environmental Medicine Noise and Hearing Conservation Committee (ACOEM). ACOEM stated that occupational noise induced hearing loss was a function of continuous or intermittent noise exposure and duration which usually developed slowly over several years. This was in contrast to occupational acoustic trauma that was characterized by a sudden change in hearing due to a single exposure or burst of sound. Further, ACOEM noted that unilateral sources of noise such as sirens and gunshots could produce asymmetric hearing loss. Pursuant to the Board's November 2020 remand, an addendum VA medical opinion was sought in February 2021. The VA examiner again opined that the Veteran's right ear hearing loss was less likely than not related to service. The examiner noted that while noise exposure could be conceded, acoustic damage could not, as the Veteran's enlistment audiogram and separation audiogram reflected normal hearing in all frequencies for the right ear. Regarding the findings from ACOEM, the examiner noted that it was true that noise exposure and noise damage could occur due to continuous exposure over time; however, the hearing in the ACOEM study was documented over the course of the noise exposure. Regarding ACOEM's findings concerning asymmetric hearing loss, the examiner noted that testing for retrocochlear pathology was outside her scope of practice. The Board finds that the balance of favorable and unfavorable medical evidence is in equipoise; thus, the Board resolves doubt in the Veteran's favor and finds that the third element of service connection has been met. As such, the Board finds that the Veteran's right ear hearing loss is etiologically related service and the claim of entitlement to service connection for right ear hearing loss is granted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Silverblatt, 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.