Citation Nr: 1308152	
Decision Date: 03/11/13    Archive Date: 03/20/13

DOCKET NO.  09-06 678	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to service connection for left ear hearing loss.  


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


WITNESSES AT HEARING ON APPEAL

Veteran and spouse


ATTORNEY FOR THE BOARD

Saira Spicknall, Counsel


INTRODUCTION

The Veteran served on active duty from May 1978 to May 1982 and from July 2005 to May 2006.  The Veteran also had service in the Naval Reserves.  He has been awarded the Combat Action Ribbon and the Afghanistan Campaign Medal with Globe and Anchor.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Waco, Texas Department of Veterans Affairs (VA) Regional Office (RO).  

The Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge of the Board (Travel Board hearing) in April 2011.  A transcript of that hearing has been associated with the claims file.  

In a March 2011 statement and during the April 2011 Travel Board hearing, the Veteran withdrew the issues of entitlement to service connection for diabetes mellitus and an initial compensable rating for erectile dysfunction.  Therefore, these issues are not in appellate consideration.  38 C.F.R. § 20.204 (2012).

In a November 2011 decision, the Board denied the issues of entitlement to service connection for hearing loss of the right ear and sleep apnea.  The Board also granted the claims of entitlement to service connection for bilateral plantar fasciitis, tinnitus and irritable bowel syndrome.  This decision was final when issued and the Veteran did not file a notice of appeal with respect to the Board's decision.  Therefore these claims are no longer in appellate consideration.  In addition, the Board remanded the claims of entitlement to service connection for a low back disorder and left ear hearing loss.  

During the pendency of this appeal, by a December 2012 rating decision, the RO granted the Veteran's claim for service connection for chronic myofascial lumbar syndrome (claimed as low back strain), thereby constituting a full grant of the benefits sought on appeal.  Thus, as this issue was granted in full it is not in appellate status before the Board and need not be addressed further.  

A review of the Virtual VA paperless claims processing system reflects that additional records have not been added to the present appeal.  


FINDING OF FACT

Left ear hearing loss was not incurred during or as a result of the Veteran's first period of active service, preexisted his second period of active service, and did not undergo an increase in severity during the second period of active service.  


CONCLUSION OF LAW

The criteria for the establishment of service connection for left ear hearing loss have not been met.  38 U.S.C.A. §§ 1110, 1111, 1112, 1113, 1131, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board will discuss the relevant law which it is required to apply.  This includes statutes published in Title 38, United States Code ("38 U.S.C.A."); regulations published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet.App.").  

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions.  38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet.App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction.  The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts).

The Veterans Claims Assistance Act (VCAA)

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  

VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1) (2012).

The United States Court of Appeals for Veterans Claims (Court) held in Pelegrini v. Principi, 18 Vet. App. 112 (2004) that to the extent possible the VCAA notice, as required by 38 U.S.C.A. § 5103(a) (West 2002), must be provided to a claimant before an initial unfavorable decision on a claim for VA benefits.  Pelegrini, 18 Vet. App. at 119-20; see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

Prior to the initial adjudication of the Veteran's claims for service connection in the February 2008 rating decision, he was provided notice consistent with the requirements of the VCAA in September 2007.  The VCAA letter indicated the types of information and evidence necessary to substantiate the claim, and the division of responsibility between the Veteran and VA for obtaining that evidence, including the information needed to obtain lay evidence and both private and VA medical treatment records.  The Veteran also received information in September 2007 about the establishment of disability ratings and effective dates if a claim of service connection was successful.  Dingess v. Nicholson, 19 Vet. App. 473 (2006); see also Mayfield and Pelegrini, both supra.

The Veteran was afforded a VA examination in December 2007 with a December 2007 addendum and an addendum opinion was provided in October 2012.  These reports reflect that the examiner reviewed the Veteran's past medical history, documented his current medical condition, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record, and with supporting rationale.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  Thus, the December 2007 medical examination, December 2007 addendum and October 2012 addendum are adequate for adjudication purposes.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).  

This case was previously remanded by the Board in November 2011 to provide the Veteran with an adequate VA opinion as to whether the Veteran's preexisting left ear hearing loss was aggravated by his second period of active service.  As the October 2012 VA examiner reviewed the claims file, provided an opinion with an appropriate rationale and complied with the Board's remand instructions, the development requested by its November 2011 remand has now been satisfactorily completed and substantially complied with respect to the left ear hearing loss.  See Stegall, 11 Vet. App. 268 (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with).  

All relevant evidence necessary for an equitable resolution of the issue on appeal has been identified and obtained, to the extent possible.  The evidence of record includes service treatment records, private medical records, VA outpatient treatment reports, an adequate VA examination, an adequate VA opinion and statements and testimony from the Veteran, his spouse and his representative.  The Veteran has not indicated that he has any further evidence to submit to VA, or which VA needs to obtain.  There is no indication that there exists any additional evidence that has a bearing on this case that has not been obtained.  The Veteran and his representative have been accorded ample opportunity to present evidence and argument in support of his appeal.  All pertinent due process requirements have been met.  See 38 C.F.R. § 3.103 (2012).

The Merits of the Claim

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012).  In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

In order to establish service connection for a claimed disorder on a direct basis, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).

Service connection will also be presumed for certain chronic diseases, including sensorineural hearing loss, if manifested to a compensable degree within one year after discharge from service. 38 U.S.C.A. § 1112; 38 C.F.R §§ 3.307, 3.309.  This presumption, however, is rebuttable by probative evidence to the contrary.  38 U.S.C.A. § 1113.

A veteran who served during a period of war is presumed to be in sound condition when enrolled for service, except for any defects, infirmities, or disorders noted at the time of examination, acceptance and enrollment.  38 U.S.C.A. § 1111.  Only such conditions as are recorded in examination reports are to be considered as "noted."  38 C.F.R. § 3.304(b).  The veteran's reported history of the pre-service existence of a disease or injury does not constitute notation of such disease or injury, but is considered with all other evidence in determining if the disease or injury preexisted service.  See Paulson v. Brown, 7 Vet. App. 466, 470 (1995).

The presumption of soundness can be rebutted if clear and unmistakable evidence demonstrates that the disease or injury existed prior to service and was not aggravated by such service.  38 U.S.C.A. § 1111.  A preexisting injury or disease will be considered to have been aggravated by active military 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 progression of the disease.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306.

The burden is on the government to rebut the presumption of soundness by clear and unmistakable evidence that a condition was both preexisting and not aggravated by service.  Compare 38 C.F.R. § 3.304(b), with Cotant v. Principi, 17 Vet. App. 116 (2003); VAOPGCPREC 3-2003 (holding, in part, that 38 C.F.R. § 3.304(b) is inconsistent with 38 U.S.C. § 1111 to the extent that it states that the presumption of soundness may be rebutted solely by clear and unmistakable evidence that a disease or injury existed prior to service).  See also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).

Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; Falzone v. Brown, 8 Vet.App. 398, 402 (1995).  See also Davis v. Principi, 276 F.3d 1341, 1344-45 (Fed. Cir. 2002) (holding that evidence of a temporary flare-up, without more, does not satisfy the level of proof required of a non-combat Veteran to establish an increase in disability).

The determination as to whether the requirements for service connection are met is based on an analysis of all of the evidence of record and the evaluation of its credibility and probative value.  38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 3.303(a) (2012).  See Baldwin v. West, 13 Vet. App. 1 (1999).  When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012).  See Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001).  If the Board determines that the preponderance of the evidence is against the claim, then it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule will not be applicable.  Ortiz, 274 F.3d at 1365.

The Veteran contends that he incurred hearing loss in the left ear from his second period of active service, wherein he was exposed to small arms fire, mortar attacks and howitzer noise while serving in Afghanistan.  

The Veteran's DD forms 214 reflect that he served on two periods of active service from May 1978 to May 1982 and from July 2005 to May 2006.  His military occupational specialty (MOS) during his second period of active service was that of a utilities man (UT).  A DD form 215 also reflects that the Veteran was awarded the Combat Action Ribbon, indicative of combat service.  This evidence of combat service is consistent with the places, types, and circumstances of his active service and is sufficient to support the Veteran's contention that he was exposed to loud noises from various military weaponry during his second period of active service.  See 38 U.S.C.A. § 1154(b) (West 2002).  

Service treatment reports reflect that a May 1978 enlistment examination revealed no abnormal findings of the Veteran's ears or drums upon clinical evaluation and audiometric testing revealed that the hearing threshold levels in decibels were as follows:




HERTZ









500
1000
2000
3000
4000
RIGHT
10
10
5
5
5
LEFT
15
15
5
20
15

In a May 1978 Report of Medical History, the Veteran reported having no history of ear trouble or hearing loss.  

A February 1980 examination for Occupational Exposure to Ionizing Radiation revealed no abnormal findings of the ears or drums upon clinical evaluation, however, a notation indicated the Veteran had serous otitis in the right ear.  In the February 1980 Report of Medical History, a history of ear nose and throat trouble as well as hearing loss appear to be noted and were specified as hearing loss and serous otitis, both of the right ear.  The Veteran was again treated for serous otitis later in February 1980.  

In December 1981, audiometric testing revealed that the hearing threshold levels in decibels were as follows:




HERTZ









500
1000
2000
3000
4000
RIGHT
15
10
5
5
5
LEFT
5
15
5
20
15

An April 1982 examination for Occupational Exposure to Ionizing Radiation, performed just prior to the Veteran's separation from his first period of active service, revealed no abnormalities of the ears or drums upon clinical evaluation.  At that time, audiometric testing revealed that the hearing threshold levels in decibels were as follows:




HERTZ









500
1000
2000
3000
4000
RIGHT
15
10
5
5
5
LEFT
5
15
5
20
15

In an April 1982 Report of Medical History, the Veteran reported having no history of ear trouble or hearing loss.  

In a September 1993 enlistment examination upon entrance into the Naval Reserves, no abnormalities of the ears or drums were noted upon clinical evaluation and no audiometric testing was performed.  In a September 1993 Report of Medical History, the Veteran reported having no history of ear trouble or hearing loss.  

In July 1996, audiometric testing revealed that the hearing threshold levels in decibels were as follows:




HERTZ









500
1000
2000
3000
4000
RIGHT
5
0
5
15
10
LEFT
15
15
30
45
30

A June 1998 five year examination revealed no abnormalities of the ears or drums upon clinical evaluation and audiometric testing revealed that the hearing threshold levels in decibels were as follows:




HERTZ









500
1000
2000
3000
4000
RIGHT
5
0
5
20
10
LEFT
10
5
25
45
35

At that time, a summary of defects and diagnoses included high frequency hearing loss.  In a June 1998 Report of Medical History, the Veteran reported having no history of ear trouble and he did not know if he had a history of hearing loss.  

In July 2003 retention examination, no abnormalities of the ears or drums were noted upon clinical evaluation and audiometric testing revealed that the hearing threshold levels in decibels were as follows:





HERTZ









500
1000
2000
3000
4000
RIGHT
10
5
15
25
25
LEFT
15
10
35
45
45

High frequency and low frequency hearing loss of the left ear was noted from 2000 to 6000 Hertz and a summary of defects and diagnoses included bilateral high frequency hearing loss, left greater than right, not considered disqualifying.  A July 2003 Report of Medical History reflects that the Veteran reported having no history of ear trouble or hearing loss.   

A November 2006 Post-Deployment Health Assessment reflects that the Veteran reported exposure to loud noises while deployed.  In July 2007 and August 2007 service treatment reports, a notation of hearing loss was included with requests for medical care.  A September 2007 Navy Personnel Command One Time Medical Office Visit Authorization reflects that the Veteran was authorized to a one-time medical office visit with a primary care and mental health specialist for conditions including, gastrointestinal problems, hearing loss and behavioral health problems.  

The post service medical evidence of record includes private medical records from July 1999 to January 2009 and VA outpatient treatment reports from December 2006 to March 2009.  These records reflect that the Veteran was initially treated for and diagnosed with normal to moderate, high frequency, sensorineural hearing loss in the left ear at VA in April 2007.  Audiometric testing at that time revealed that the hearing threshold levels in decibels were as follows:




HERTZ









500
1000
2000
3000
4000
RIGHT
15
10
20
35
25
LEFT
20
20
40
50
50

In an October 2007 private medical record, the Veteran reported having hearing loss for a "few years" which developed steadily and that it occurred after exposure to firearms, aircraft engines and explosions for several months.  He was diagnosed with bilaterally, asymmetrical, sensorineural hearing loss.  The private physician, Dr. Bradford W. Holland, M.D., noted that he discussed a blast with the Veteran, wherein he was exposed to a rocket explosion on the left side while serving in Afghanistan, affecting the left ear more than the right, and which could have caused his hearing loss.  Dr. Holland found however, that he could not rule out retro cochlear pathologies either, such as acoustic neuroma, without imaging.  

At a December 2007 VA examination, the Veteran was diagnosed with moderate sensorineural hearing loss at 2000 to 4000 Hertz.  Audiometric testing revealed that the hearing threshold levels in decibels were as follows:




HERTZ









500
1000
2000
3000
4000
RIGHT
-
5
10
30
15
LEFT
10
10
40
45
40

The Veteran reported that he was a member of Seabees (Naval Construction Battalion) and was a water plant operator for 20 years.  He retired from that position since returning to civilian life and had not been to the medical center for six months.  He reported noise exposure while in Afghanistan from incoming RPGs, small arms fire and friendly outgoing 155mm howitzer fire.  He estimated that, on one occasion, an RPG exploded about 30 meters from him.  

In a December 2007 addendum, following a review of the claims file, the examiner opined that it was his opinion there was a preexisting hearing loss at the time of the Veteran's activation to active service in 2005, which occurred after his active duty separation in 1982.  He noted that at the time of his enlistment in the Navy, the Veteran's binaural hearing was well within normal limits and the December 1981 audiogram indicated his hearing was within normal limits at the time of his separation from active service.  The examiner also found that hearing loss was noted as early as 1996 per a July 1996 audiogram which reflected the left ear had mild to moderate hearing loss from 2000 to 4000 Hertz and the right ear remained within normal limits.  Therefore, he concluded that hearing loss preexisted the Veteran's one year activation for Operation Enduring Freedom.  

In a March 2008 letter, Dr. Holland reported that he saw the Veteran for a follow-up and his diagnosis included sensorineural hearing loss, asymmetrical.  He also concluded that the Veteran had a blast injury to the ear with post-acoustic trauma hearing loss which was debilitating.  He found that this was a direct result of an injury he sustained while in Afghanistan and was service related.  Dr. Holland also found that the Veteran's hearing loss was significant but stable and did not appear to be rapidly progressive at this time.  

An April 2008 VA audiological assessment and consult report reflects that audiometric testing revealed that the hearing threshold levels in decibels were as follows:




HERTZ









500
1000
2000
3000
4000
RIGHT
15
10
20
35
20
LEFT
20
20
55
50
55

Findings indicated mild to moderate sensorineural hearing loss at 2000 Hertz and above.  No significant hearing threshold shift was noted since the previous testing in April 2007.  A hearing aid was recommended at that time.

In a June 2008 statement, the Veteran's spouse reported that prior to his deployment in Kuwait and Afghanistan, he did not complain of any ringing in his ears and that since his return he complained of a ringing in the ears.  She also noted that the Veteran's hearing had deteriorated and since his return he had to get a hearing aid.  Finally she reported he continued to complain of a ringing in the ears.  

In a July 2008 letter, Dr. Holland stated that, based on the Veteran's history in the military and his earlier March 2008 evaluation, it was his opinion that the Veteran's bilateral tinnitus was a direct result of blast injuries sustained during service related operations in Afghanistan.  He also reported that the blast injury to the ear was clearly service related and clearly resulted in post-acoustic trauma hearing loss and tinnitus.  

In an August 2008 letter, a private treatment provider, Dr. Lisa Kirk, D.O. reported that the Veteran was under her care for medical conditions, including bilateral tinnitus and hearing loss.  She stated that the condition was significant but stable and most likely the result of a blast injury to the ears, causing post acoustic trauma hearing loss.   

During an April 2011 Travel Board hearing, the Veteran reported that his hearing loss began during his second period of active service.  He stated that he really noticed hearing loss in his second period of active service because of exposure to noise from mortar attacks, howitzers and cannons during his time in Afghanistan.  The Veteran testified that he was not exposed to any loud noises while working for the City of Waco between his first and second periods of active service.  He also reported that he served in Afghanistan was awarded the Combat Action Ribbon.  

In an October 2012 VA addendum, a VA examiner reviewed the claims file and provided an opinion as to whether the Veteran's hearing loss, which was noted to have preexisted his second period of active service, was aggravated by the Veteran's second period of active service.  The examiner noted that the Veteran's hearing was within normal limits throughout his initial service from 1978 to 1982 with no significant hearing threshold shifts suggested to have occurred during that time.  He also observed that the Veteran entered the Naval Reserves in 1993, at which time, no audiogram was found, however, a 1996 audiogram documented mild to moderate hearing loss from 2000 to 4000 Hertz in the left ear.  The examiner explained that this occurred in the years after the Veteran's separation from active service in 1982.  In addition these results were noted by the examiner to have been confirmed in an examination in 1998.  The examiner found that the results of the December 2007 VA audiology examination were within the test/retest variability compared to the 1996 audiogram, which was over 10 years earlier and years before his deployment in 2005 to 2006.  He explained that this observation was evidence that no significant hearing threshold shifts occurred while the Veteran was activated from the Naval Reserves unit.  Therefore he concluded that the Veteran's preexisting left ear hearing loss was not aggravated by his military noise exposure during his active service from 2005 to 2006.  

Entitlement to service connection for left ear hearing loss is not warranted.  While the Veteran is currently diagnosed with left ear sensorineural hearing loss, probative evidence of record does not demonstrate a nexus between the Veteran's currently diagnosed hearing loss and his first period of active service and there is clear and unmistakable evidence demonstrating that the Veteran's left ear hearing loss preexisted his second period of active service and was not aggravated during the his second period of active service.  

At the outset, the Board observes that the Veteran has a current diagnosis of sensorineural hearing loss of the left ear as demonstrated by the private and VA medical evidence above.

With respect to the Veteran's first period of active service, the service treatment reports do not reflect and the Veteran himself does not contend that hearing loss was incurred during this period of active service.  In fact, the VA examiners in December 2007 and October 2012 both concluded that, in reviewing the service treatment reports, the Veteran's hearing was within normal limits during his first period of active service from 1978 ot 1982 with no significant hearing threshold shifts suggested to have occurred during that time.  These reports are supported by the service treatment records which do not demonstrate an increase in hearing threshold levels in the left ear throughout the Veteran's first period of active service.  As noted above, the December 2007 examination and October 2012 addendum have been found to be adequate.  As such, there is no evidence demonstrating that the Veteran's left ear hearing loss was incurred in or otherwise related to this first period of active service.  

With respect to the Veteran's second period of active service, as there is no evidence of a hearing loss condition that was noted upon entry into his active service, mainly because there is no entrance examination of record, the presumption of soundness does apply.  However, for the following reasons, there is clear and unmistakable evidence of record that the Veteran's left ear hearing loss both preexisted his second period of active service and was not aggravated by his second period of active service, thereby rebutting the presumption of soundness.  38 U.S.C.A. §§ 1111, 1153; 38 C.F.R. §§ 3.304(b), 3.306; see Paulson v. Brown, 7 Vet. App. 466, 470 (1995).  

The contemporaneous service records reflect a significant shift in hearing threshold levels from the April 1982 examination to the July 1996 audiometric testing results, with increases from 5, 15, 5, 20, and 15 decibels in the left ear at 500, 1000, 2000, 3000 and 4000 Hertz, respectively in April 1982 to 15, 15, 30, 45, and 30 decibels at corresponding frequencies in the left ear in July 1996.  In addition, service treatment records following the July 1996 audiometric findings and prior to the Veteran's second period of active service also reflect hearing threshold levels in the left ear of 10, 5, 25, 45, and 35 decibels at 500, 1000, 2000, 3000 and 4000 Hertz respectively in June 1998 and hearing threshold levels in the left ear of 15, 10, 35, 45, and 45 decibels a at corresponding frequencies.  These increases in hearing threshold levels in the left ear prior to the Veteran's second period of active service, in conjunction with the post service VA examiner's opinions in December 2007 and October 2012 indicating there was a preexisting hearing loss at the time of the Veteran's activation to active service in 2005, which occurred in the years after the Veteran's separation from active service in 1982, constitutes clear and unmistakable evidence that the Veteran's left ear hearing loss existed before his entrance into his second period of active military service.  38 U.S.C.A. §§ 1111, 1132, 1137; see Paulson v. Brown, 7 Vet. App. 466, 470 (1995).

While the Veteran's service information supports his reports of exposure to loud noises during active service, despite this exposure there is no evidence of any increase in disability in his preexisting hearing loss during his second period of active service.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306.  In so finding, the Board relies on October 2012 VA examiner's opinion which has been found to be adequate.  In the October 2012 VA addendum, the examiner finds that the Veteran's preexisting left ear hearing loss was not aggravated by his military noise exposure during his active service from 2005 to 2006.  The examiner found that the results of the December 2007 VA audiology examination were within the test/re-test variability compared to the 1996 audiogram, which was over 10 years earlier and years before his deployment in 2005 to 2006.  He also explained that this observation was evidence that no significant hearing threshold shifts occurred while the Veteran was activated from the Naval Reserves unit.  As noted earlier, this addendum has been found to be adequate.  Therefore, the October 2012 VA addendum found that there was no measurable worsening of the preexisting left ear hearing loss during the Veteran's second period of active service, this reflects a lack of aggravation of the Veteran's preexisting left ear hearing loss.  38 U.S.C.A. § 1153; Wagner v. Principi, 370 F.3d at 1096.  

In addition, the various opinions submitted by Dr. Holland and Dr. Kirk that the Veteran's blast injury to the ear caused acoustic trauma and resulted in post-acoustic trauma hearing loss do not consider the hearing thresholds demonstrated in the Veteran's service records in the years prior to his active service and do not provide any evidence regarding whether his in-service noise exposure aggravated the preexisting hearing loss.  Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and the extent to which they reviewed prior clinical records and other evidence.  Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); see also Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).  In considering the private medical opinions and the October 2012 VA addendum, the Board affords greater weight to the October 2012 VA examiner's opinion as it was based upon a review of the claims file, including service treatment reports, and is consistent with the evidence of record.  Therefore, the Board affords this opinion greater weight than the opinions of the private medical providers.  

The Veteran's statements and testimony and the lay statement from his spouse regarding his exposure to loud noise during his second period of active service and that his hearing had deteriorated service are competent and credible evidence of noise exposure in service, that his spouse noticed his hearing had deteriorated and that he had to get a hearing aid.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Baldwin v. West, 13 Vet. App. 1 (1999) (the Board must analyze the credibility of the evidence).  These statements, while competent, do not provide any lay evidence as to whether there was any continuity of left ear hearing loss since his second period of active service or whether that there had been an aggravation of the preexisting left ear hearing loss.  

Accordingly, the Board concludes that the service treatment records in conjunction with the findings of the October 2012 VA examiner constitutes clear and unmistakable evidence that the Veteran's left ear hearing loss existed before his entrance into military service and was not aggravated by active service.  38 U.S.C.A. § 1111, 1132, 1137, 1153; Wagner v. Principi, 370 F.3d at 1096.  


ORDER

Service connection for left ear hearing loss is denied.  



____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs