Citation Nr: 22014667 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 19-00 305A DATE: March 14, 2022 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's current bilateral hearing loss had its onset during active military service. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from April 1960 to July 1964. These matters come before the Board of Veterans' Appeals (Board) on appeal of a September 2018 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). 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). Entitlement to service connection for bilateral hearing loss. Service connection will be granted if the evidence demonstrates that a disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may also be granted for a disease first 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). When considering whether lay evidence may be competent, the Board must determine, on a case-by-case basis, whether the Veteran's disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue."). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Lynch v. McDonough, 999 F.3d 1391, 1395 (Fed. Cir. 2021) (holding that if the positive and negative evidence is in approximate balance, which includes but is not limited to equipoise, the claimant receives the benefit of the doubt). The Veteran contends that his bilateral hearing loss had its onset during active service as a result of exposure to hazardous noise. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000 or 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. 38 C.F.R. § 3.385. The threshold for normal hearing is 0 to 20 decibels. The Veteran's post-service treatment records contain audiological examinations showing that he has bilateral hearing loss for VA purposes. The Veteran's service records and statements show exposure to hazardous noise during active military service. Although his MOS, personnel clerk (clerical), has a low probability of hazardous noise exposure, the Veteran reported that his workstation was below three decks in a small office in close proximity to the engine room of the Navy destroyer, USS Furse. The Veteran's service records show that he served on the USS Furse for three years. The Veteran reported that he served 8-to-12-hour duty shifts in this small office with constant exposure to loud engine noise. The Veteran reported that he first noticed a decrease in his hearing while serving under these conditions. The Veteran also reported that he was never provided hearing protection while serving on the USS Furse. The record also indicates that the Veteran was qualified as a marksman. In this regard, the Board finds that the Veteran is both competent and credible to report on the events he experienced in-service as well as the observable manifestations of his hearing loss. The Veteran is considered competent to report experiencing a decrease in hearing during active military service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Moreover, the Veteran's circumstances of service and current diagnoses are consistent with a finding that his hearing disability had onset in service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. The Board acknowledges that a negative nexus opinion for the Veteran's hearing loss was provided in a September 2018 VA examination. However, the Board finds that the examination is of low probative value with respect to a nexus to active military service, as the examiner did not address the Veteran's reported in-service noise exposure. In considering the evidence discussed above, the Board finds that the evidence is at least evenly balanced as to whether the Veteran's bilateral hearing loss is related to hazardous noise exposure during service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for tinnitus is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Lynch v. McDonough, 999 F.3d 1391, 1395 (Fed. Cir. 2021). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. VanValkenburg 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.