Citation Nr: 0813217 Decision Date: 04/22/08 Archive Date: 05/01/08 DOCKET NO. 07-00 743 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Arkansas Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran (Appellant) and Spouse ATTORNEY FOR THE BOARD S. Coyle, Associate Counsel INTRODUCTION The veteran served on active duty from July 1966 to March 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision by the North Little Rock, Arkansas, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied entitlement to the benefit currently sought on appeal. A hearing on this matter was held before the undersigned Acting Veterans Law Judge sitting at the RO on December 4, 2007. A copy of the hearing transcript has been associated with the file. FINDINGS OF FACT 1. High frequency bilateral hearing loss was exhibited at service entry. 2. A preponderance of the evidence establishes that the veteran's hearing loss underwent a permanent increase in severity during service. CONCLUSION OF LAW Resolving reasonable doubt in the veteran's favor, bilateral hearing loss was aggravated during the veteran's active service. 38 U.S.C.A. §§ 1110, 1111, 1153, 5100-5013A, 5106, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.306(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Board notes that the RO has a duty to notify and assist the veteran under 38 U.S.C.A. § 5103 and 38 C.F.R. § 3.159. As will be discussed below, the Board finds that service connection for bilateral hearing loss is warranted; therefore, a full discussion of whether VA met these duties is not needed. It is important to note, however, that the RO provided notice with respect to the initial disability rating and effective date elements of the claims in July 2006. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Service Connection for Bilateral Hearing Loss A veteran who served during a period of war or during peacetime service after December 31, 1946 is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that the disability manifested in service existed before service will rebut the presumption. 38 U.S.C.A. §§ 1111. To rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 03-2003. A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. See 38 U.S.C.A. § 1153. Clear and unmistakable evidence is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. See 38 C.F.R. § 3.306. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertinent to the manifestation of the disability prior to, during and subsequent to service. Id. Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted with symptoms, has worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993). Accordingly, "a lasting worsening of the condition," that is, a worsening that existed not only at the time of separation but one that still exists currently, is required. See Routen v. Brown, 10 Vet. App. 183, 189 n. 2 (1997); see also Verdon v. Brown, 8 Vet. App. 529, 538 (1996). In this case, the presumption of soundness does not attach, as the veteran's service medical records show that bilateral high frequency hearing loss was "noted" at service entrance on his initial examination for service in July 1966. 38 U.S.C.A. § 1111. Therefore, the question before the Board is whether the veteran's preexisting hearing loss was aggravated during service. To make this determination, the Board must consider the veteran's service medical records as well as evidence developed after service. 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, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet.App. 155 (1993). An audiogram conducted at service entry showed pure tone thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 (20) 5 (15) 0 (10) n/a 35 (40) LEFT 0 (15) 5 (15) 10 (20) n/a 25 (30) (NOTE: Prior to November 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA). Those are the figures on the left of each column and are not in parentheses. Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). Although the March 1968 examination was conducted after November 1967, the report indicates ASA standards were used; therefore, in order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses). The veteran's high frequency hearing loss at entry was termed "mild" by a VA examiner interpreting the results in January 2006. Service medical records make no mention of treatment for hearing loss. Although the veteran's March 1969 separation examination shows hearing within normal limits at all thresholds, the veteran has submitted an audiological examination that was conducted in April 1969, one month after his discharge. The results of the examination were interpreted by the January 2006 VA examiner, who found that they showed hearing within normal limits from 1000 to 3000 Hertz and "moderately severe" hearing loss at 4000 Hertz. Audiograms conducted in April 1978 and January 1982, likewise, show that the veteran had progressively worsening high frequency hearing loss. The most recent VA examination conducted in January 2006 showed that the veteran's hearing has continued to deteriorate. On review, the evidence shows that the veteran's preexisting "mild" high frequency hearing loss was aggravated by his active service. See 38 C.F.R. § 3.306(a). Although the veteran's March 1969 separation examination showed hearing within normal limits, an audiogram conducted less than 30 days after his discharge showed a "moderately severe" high frequency hearing loss, according to the January 2006 VA examiner. The veteran credibly testified at his December 2007 hearing that he had not been exposed to noise in the brief period between his discharge and the April 1969 audiogram. Thus, the Board finds that the April 1969 audiogram shows a permanent increase in severity of the veteran's preexisting hearing loss during service, as the private audiological examination was conducted less than 30 days after his discharge. The veteran underwent VA examinations in May 2005 and December 2005. Both opined there was no nexus between the veteran's hearing loss and his service; however, neither examiner reviewed the claims folder, decreasing the probative value of the opinions. While an examiner can render a current diagnosis based upon his examination of the veteran, an opinion based upon an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). In January 2006, the veteran's claims folder was reviewed by a VA audiologist who opined that there was no connection to service because the veteran's audiogram at service discharge showed no hearing loss; however, in Hensley v. Brown, 5 Vet. App. 155, 159 (1993), the United States Court of Appeals for Veterans Claims rejected such logic, stating that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service. The January 2006 examiner also did not evaluate the significance of the April 1969 audiogram showing hearing loss less than 30 days after discharge. As a result, the Board finds that there is no clear and unmistakable evidence or record that rebuts the presumption of aggravation. See VAOPGCPREC 03-2003. The veteran's post- service audiograms have shown high frequency hearing loss of increasing severity since his discharge; thus, the April 1969 audiogram does not represent a temporary flare-up of the veteran's preexisting condition. See Routen v. Brown, 10 Vet. App. 183, 189 n. 2 (1997); see also Verdon v. Brown, 8 Vet. App. 529, 538 (1996). For these reasons, and resolving reasonable doubt in the veteran's favor, the Board finds that service connection for bilateral hearing loss is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for bilateral hearing loss is granted. ____________________________________________ J. Parker Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs