Citation Nr: 21041811 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 18-54 350 DATE: July 10, 2021 ORDER Entitlement to service connection for a left ear hearing loss disability is granted. REMANDED Entitlement to service connection for a right ear hearing loss disability is remanded. FINDING OF FACT The Veteran's left ear hearing loss began during active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a left ear hearing loss disability have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from October 1966 to March 1967 and from November 1990 to July 1991. The Veteran had additional National Guard service. This appeal comes to the Board of Veterans' Appeals (Board) from a rating decision dated January 2016 issued by a Department of Veterans Affairs (VA) Regional Office. The Veteran timely appealed. The Veteran testified at an April 2021 Board virtual hearing. A transcript of this hearing has been reviewed and associated with the Veteran's claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Service Connection Establishing service connection generally requires competent evidence showing: (1) the existence of a current disability; (2) 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. Shedden v. Principi, 381, F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also 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). Certain chronic diseases, including sensorineural hearing loss, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Entitlement to service connection for a left ear hearing loss disability The Veteran contends that he has left ear hearing loss that began in service. He contends his hearing loss is a result of his military occupational specialty (MOS) working in vehicle maintenance and repair. During his April 2021 hearing, the Veteran testified that while in service, he was around Air National Guard jets. He worked first in an aviation outfit that had helicopters and then in automotive maintenance all of his career. He noted that he was around many types of equipment that created a lot of noise all throughout service, including generators and trucks with compressors. He worked around vehicles for more than 30 years total while in the service. He stated that for the first 20 years or so there was no hearing protection; it was provided later on. He noted that his hearing loss started at least 20 years prior. He began noticing hearing trouble when he was activated for Persian Gulf service, which included having to occasionally ask people to repeat themselves. See April 2021 Hearing Transcript. A hearing loss disability is defined for VA compensation purposes with regard to audiologic testing involving puretone frequency thresholds and speech discrimination criteria. 38C.F.R. §3.385. For purposes of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC test are less than 94 percent. Id. As an initial matter, the Veteran has a current disability of left ear hearing loss as shown by his April 2016 VA examination. Additionally, there was a qualifying injury of acoustic trauma based on his MOS during service, as described above. Therefore, the first and second elements of service connection have been met. The remaining question is whether there is a nexus between the acoustic trauma in service and his current left ear hearing loss. The Veteran asserts that his left ear hearing loss began in service and has persisted to the present. A June 8, 1991 in-service audiogram shows hearing loss for VA purposes. See Service Treatment Record dated June 1991. Thus, the evidence shows left ear hearing loss for VA purposes in service, establishing the presumption of onset of a chronic disease in service under 38 C.F.R. §§ 3.307 (a), 3.309(a). There is no probative evidence to rebut the presumption. As a result, the preponderance of the evidence is in favor of finding that the Veteran's left ear hearing loss began in service. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.309. The claim is granted. REASONS FOR REMAND Entitlement to service connection for a right ear hearing loss disability is remanded. Although the Board regrets the additional delay, the Veteran's remaining claim must be remanded before the Board is able to make a determination on the merits. Specifically, the Board finds that additional supporting evidence is required in developing the Veteran's claim. The Veteran contends that his right ear hearing loss is also due to his service. As explained in the prior section, the Board has found in-service acoustic trauma based on his MOS. He reported that his hearing loss started at least 20 years ago. He began noticing hearing trouble when he was activated for Persian Gulf service, which included having to occasionally ask people to repeat themselves. He also stated that the hearing loss must have come from the noise exposure in service because his entire time in service he worked on and around heavy equipment. Furthermore, during his April 2021 hearing, the Veteran testified that when he first began the process of his appeal, he took a packet of all his health records to the VA office and did not receive it back. These records were from his time in service. He also noted that he had additional service in the National Guard. However, the Board does not have the Veteran's military records from this 30 plus year period of National Guard service. It does not appear that any action has been taken to obtain these records. Thus, efforts are needed to obtain complete service treatment records and if they are unavailable, a formal finding must be made and the Veteran must be notified. 38 C.F.R. § 3.159(c), (e). Remand is necessary to correct this duty to assist error. Therefore, the Board finds that a remand is required in order to obtain a medical opinion regarding the Veteran's right ear hearing loss disability as it relates to his military service and to obtain complete service treatment records. Accordingly, the matter is REMANDED for the following action: 1. Exhaust all efforts to obtain the complete service treatment records and personnel records from the National Guard for the Veteran's entire career. If the AOJ cannot locate the Federal records requested herein, it must specifically document the attempts that were made to locate them and explain in writing why further attempts to locate or obtain any government records would be futile. The AOJ must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. 2. After all requested treatment records have been associated with the claims file, request a medical opinion addressing the Veteran's right ear hearing loss disability. In-person examination is not required unless deemed necessary by the examiner. Based upon a review of the entirety of the claims file, the examiner is requested to provide an opinion as to the following question: Is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's current right ear hearing loss was incurred during his active military service or is otherwise related to his service, to include his 30 plus years of hazardous noise exposure during his active duty and National Guard service? Please specifically consider the January 17, 1995 and the January 6, 2000 audiograms in the Veteran's STRs and the Veteran's report that he was not exposed to loud noise in any other context except during his military service. (Continued on the next page) Explanations for all opinions must be provided. The examiner is asked to cite to the pertinent evidence of record, including clinical records and the Veteran's statements regarding the history of his symptoms. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Bristor 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.