Citation Nr: 21030373 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 16-42 230 DATE: May 18, 2021 ORDER Entitlement to service connection for right ear hearing loss is granted. FINDING OF FACT The Veteran's right ear hearing loss is at least as likely as not caused by or related to his active duty service. CONCLUSION OF LAW The criteria for service connection for right ear hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from October 1982 to September 1992. This issue came before the Board of Veterans' Appeals (Board) on appeal of a February 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. This issue, inter alia, was previously remanded by the Board in October 2018 and July 2020. The issue of entitlement to service connection for left ear hearing loss and left and right knee disabilities, to include total right knee replacement and surgical scar, were remanded by the Board and granted in a February 2021 rating decision. This represents a complete grant of the benefits sought as to those matters, however, the issue of entitlement to service connection for right ear hearing loss is before the Board for further appellate consideration. Entitlement to service connection for right ear hearing loss. In this post-remand case, the Veteran seeks service connection for right ear hearing loss. In June 2019, the Veteran was afforded a VA audiological examination. However, the examiner did not comply with the October 2019 Board remand directives. Therefore, in July 2020, the Board remanded the issue in order to schedule the Veteran with an additional audiological examination. As provided for above, service connection for left ear hearing loss was granted in a February 2021 rating decision. In order to establish service connection for a claimed disability, the following elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b), Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the present of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Although lay persons are considered competent to provide opinions on some medical issues, some medical issues fall outside of the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Additionally, other organic diseases of the nervous system, such as sensorineural hearing loss, are classified as "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) also applies. 38 C.F.R. § 3.307; Walker, 708 F.3d at 1338. Presumptive service connection for "chronic diseases" must be considered on three bases: chronicity during service, continuity of symptomatology since service, and manifestations within one year of the veteran's separation from service. Id. When there is no diagnosis of hearing loss in service, the absence of documented hearing loss in service is not fatal to a service connection claim for such disability, especially if service records indicate a significant in-service threshold shift. Ledford v. Derwinski, 3 Vet. App. 87 (1992); Hensley v. Brown, 5 Vet. App. 155 (1993). Establishing service connection is possible if the current hearing loss can be adequately linked to service. Ledford, 3 Vet. App. at 89. 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 the current disability is the result of an injury or disease incurred in service; the determination of which depends on a review of all of the evidence of record. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. The Veteran was afforded a VA contracted audiological examination in February 2021. The examiner found the Veteran to experience a puretone threshold loss of an average of 32.5 decibels (dB) and a speech discrimination score of 96 percent. Specifically, the Veteran had right ear puretone threshold values of 30 dB at 500 Hertz (Hz), 35 dB at 1000 Hz, 30 at 2000 Hz, 30 at 3000 Hz, 35 dB at 4000 Hz, 50 dB at 6000 Hz, and 40 dB at 8000 Hz. Impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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. See 38 C.F.R. § 3.385. Here, given the evidence that three auditory thresholds are greater than 26 dB, the Board finds evidence of a current disability for purposes of service connection. With regard to an in-service event or injury, the examiner noted the Veteran experienced significant hazardous noise exposure during service due to his military occupational specialty (MOS), expert in M16, and his service in Kuwait. Therefore, the Board finds adequate evidence of an in-service event or injury for purposes of service connection. As it pertains to the final element, a nexus, the Board finds the Veteran's right ear hearing loss is at least as likely as not caused by or related to his active duty service. First, the examiner noted in the rationale with regard to the Veteran's left ear hearing loss, that a documentation of an OSHA-defined standard threshold shift (STS) during military service and the Veteran's significant noise exposure to noxious noise indicates that "it is at least as likely as not 50/50 probability) that Veteran's current hearing loss in the LEFT EAR IS related to his military service." However, with regard to the Veteran's right ear, the examiner noted there is a lack of an STS during military service and, therefore, it is "NOT at least as likely as not (50/50 probability) that Veteran's current hearing loss in the RIGHT EAR is related to his military service." The examiner's rationale is contradictory. The examiner opined that, due to the lack of an in-service shift, his current hearing loss is not related to service although the examiner noted the Veteran held an "M16 expert and Kuwait Liberation badges." In addition, as a chronic disease of the nervous system, the Veteran's right ear hearing loss can alternatively be linked to active service by way of his credible statements with respect to continuity of symptomatology. Therefore, resolving reasonable doubt in the Veteran's favor, the Board finds that his right ear hearing loss is at least as likely as not related to his active service. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. DeBoer, 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.