Citation Nr: 22016168 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 17-19 756 DATE: March 21, 2022 ORDER Service connection for right ear hearing loss is granted. FINDING OF FACT The Veteran's current right ear sensorineural hearing loss is at least as likely as not due to military noise exposure. CONCLUSION OF LAW The criteria for service connection for right ear hearing loss have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from November 1970 to August 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in November 2016 by a Department of Veterans Affairs (VA) Regional Office. The Veteran testified before the undersigned at a Board hearing held in November 2019. A transcript of that hearing has been associated with the record. This matter was previously before the Board in January 2020 and November 2021, at which times it was remanded for further development. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurrent in service. 38 C.F.R. § 3.303(d). Generally, to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including hearing loss, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 C.F.R. §§ 3.307, 3.309. Alternatively, service connection may also be granted for chronic conditions that have manifested continuous symptomology since separation of service. Id. Impaired hearing will be considered a disability for purposes of laws administered by VA 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 failure to meet these criteria at the time of a Veteran's separation from active service is not necessarily a bar to service connection for hearing loss disability. A veteran "may nevertheless establish service connection for a current hearing loss disability by submitting evidence that the current disability is related to service." Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993); 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As noted in the Board's earlier remands, the Veteran was provided with VA hearing loss examinations in December 2016 and September 2020, both of which were subsequently found to be inadequate for the purpose of deciding the claim. In its November 2021 remand, the Board found that a July 2020 addendum to the 2016 report was also inadequate and remanded the claim for an additional addendum opinion. The selected clinician was asked to specifically discuss a medical treatise submitted by the Veteran which discussed cochlear nerve degeneration after temporary noise-induced hearing loss, as well as symptomology described by the Veteran over the course of the appeal. In the resulting January 2022 addendum, a VA audiologist determined that it was less likely than not that the Veteran's right ear hearing loss was due to his conceded in-service noise exposure. As rationale, she explained that his in-service audiograms were normal, without significant threshold shifts. She determined that the Veteran's reports of delayed onset hearing loss due to military noise was not consistent with research and treatises regarding hearing loss. The audiologist cited a 2005 Institute of Medicine (IOM) report entitled "Noise and Military Service: Implications for Hearing Loss and Tinnitus" in support of her conclusion. Based on the evidence of record, the Board finds that service connection is warranted for the Veteran's current right ear hearing loss disability, based on a relative equipoise of the evidence for and against the claim. The evidence shows that the Veteran has been granted service connection for left ear hearing loss and tinnitus, both as related to military noise exposure. The evidence of record contains a positive nexus opinion in the September 2021 VA examination, regarding the Veteran's left ear hearing loss and in-service noise exposure. Importantly, the January 2020 VA examination addendum relies on a 2005 IOM report which was recently discussed by the United States Court of Appeals for Veterans Claims (Court). In in McCray v. Wilkie, 31 Vet. App. 243, 256 (2019), the Court highlighted the contradictory findings regarding delayed-onset hearing loss in the IOM report. The IOM report indicates that "[t]here is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure" and that "definitive studies to address this issue have not been performed." The Veteran was exposed to noise from jet engines and has provided ample evidence in support of finding that right hearing loss is due to that. Service connection has been granted for left ear hearing loss and tinnitus based on that noise exposure. In contrast, VA audiologists have determined that the Veteran's right ear hearing loss is not related to his military service, with some citing medical studies whose accuracy the Court has specifically called into question. The evidence is at least in equipoise as to whether right ear hearing loss is a result of service. Accordingly, when resolving the benefit of the doubt in his favor, the Board finds that service connection for right ear hearing loss is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. The claim is granted. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jeremy J. Olsen, 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.