Citation Nr: 18140754 Decision Date: 10/05/18 Archive Date: 10/05/18 DOCKET NO. 16-22 945 DATE: ORDER Entitlement to service connection for right ear hearing loss disability is granted. Entitlement to service connection for left ear hearing loss disability is denied. FINDINGS OF FACT 1. The Veteran’s right ear hearing loss disability became manifest (had its onset) during his active service. 2. A left ear hearing loss disability was noted on induction and is not shown to have increased in severity during the Veteran’s active duty service. CONCLUSIONS OF LAW 1. Service connection for right ear hearing loss is warranted. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. Service connection for a left ear hearing loss disability is not warranted. 38 U.S.C. §§ 1110, 1111, 1112, 1153, 5107; 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from June 1969 to April 1973. This case is before the Board of Veteran’s Appeals (Board) on appeal of a March 2014 Department of Veterans Affairs (VA) rating decision. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may be granted for a disability shown after service, when all the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases (to include sensorineural hearing loss (SNHL) as an organic disease of the nervous system) may be presumed to be service-connected if manifested to a compensable degree within a specified period following separation from service (one year for organic diseases of the nervous system). 38 U.S.C. § 1112; 38 C.F.R. §§ ;3.307, 3.309(a). For diseases listed in 38 C.F.R. § 3.309(a), service connection may be established by showing continuity. 38 C.F.R. § 3.303(b). To substantiate a claim of service connection, there must be evidence of: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the disease or injury in service and the present disability. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). 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 veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. For the purposes of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies 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. 1. Service connection for right ear hearing loss is granted. The Veteran’s service separation document shows that his military occupation was in vehicle repair. Audiometry on April 1969 service entrance examination found that right ear puretone thresholds (in decibels) at the 500, 1000, 2000, and 4000 Hertz frequencies were 15, 5, 0, and 30. On August 1972 periodic examination, the right ear puretone threshold at 4000 Hertz was 50 decibels. On March 1973 hearing conservation examination, the right ear puretone threshold at 4000 Hertz was 45 decibels. On April 1973 service separation examination, the right ear puretone threshold at 4000 Hertz was 40 decibels. The instant claim seeking service connection for hearing loss was received in August 2013. On February 2014 VA hearing loss and tinnitus DBQ examination, elevated (60 decibels and above) puretone thresholds were noted at the 2000, and higher, Hertz frequencies. Right ear was 76 percent. The examiner opined that right ear hearing loss pre-existed, and was not aggravated in, service. It is not in dispute that the Veteran has a right ear sensorineural hearing loss disability. Such disability is shown by February 2014 VA examination audiometry. It is also not in dispute that he was exposed to considerable noise during service, as suggested by his military occupation (and the fact that he participated in a hearing conservation program during service). Consequently, what remains necessary to substantiate this claim is evidence of a nexus between his current hearing loss and his service. While the Veteran’s service entrance examination audiometry showed an elevated (30 decibel) puretone threshold at 4000 hertz in the right ear, it did not show that the Veteran had a right ear hearing loss disability. Hearing loss disability is defined in 38 C.F.R. § 3.385, and right ear findings on service enlistment examination audiometry do not meet that definition. Consequently, a right ear hearing loss disability was not noted on enlistment, and the Veteran is entitled to a presumption of soundness with respect to such disability on service entrance. See 38 U.S.C. § 1111. Audiograms during service and on service separation show that a right ear hearing loss disability became manifest during the Veteran’s active duty service (see August 1972 (periodic examination), March 1973 (hearing conservation), and April 2013 (service separation) audiograms (which all show a 40 decibel or higher right ear puretone threshold at 4000 hertz). Thus, indisputable evidence shows that a right ear hearing loss disability became manifest (had its onset) during the Veteran’s active duty service. Sensorineural hearing loss is a chronic disease (listed in 38 C.F.R. § 3.309(a)); and if a chronic disease is manifested in service or to a compensable degree within a year following separation (or chronicity is shown by continuity) it may be found to be service connected. See 38 C.F.R. § 3.303(b). Accordingly, service connection for a right ear hearing loss disability is warranted. The Board notes the opinions offered on February 2014 and April 2016 VA examinations against the Veteran’s claim. Those opinions are not in accordance with governing legal provisions discussed above (regarding the presumption of soundness on entry in service and providing for service connection for chronic diseases manifested in service), and may not be found dispositive. 2. Service connection to left ear hearing loss disability is denied. Audiometry on April 1969 service entrance examination found that the puretone thresholds in decibels at 500, 1000, 2000, and 4000 Hertz were 15, 5, 15, and 60 for the left ear. Under “Summary of Defects and Diagnoses,” the physician noted that the Veteran had defective hearing. A report of an ear, nose, and throat (ENT) consult on the day of the service entrance examination notes that the Veteran’s hearing was very good (excellent) with the exception of at the 4000 Hertz frequency in the left ear. Audiometry on April 1973 service separation examination found that left ear puretone thresholds at 500, 1000, 2000, 3000, and 4000 Hertz, were (in decibels) 25, 20, 15, 20, and 15. On the February 2014 VA examination, audiometry found all puretone thresholds at or above 2000 Hertz to be elevated (80 decibels or higher), and left ear speech discrimination was 68 percent. The audiologist noted that the Veteran has a left ear sensorineural hearing loss. She opined that the Veteran’s left ear hearing loss is not at least as likely as not caused by or a result of military service. She noted that a moderate hearing loss in the left ear preexisted the Veteran’s military service, as evidenced by the April 1969 service entrance audiometry. She further noted the Veteran’s 1973 separation examination showed the left ear hearing sensitivity within normal limits from 500-4000 Hz. (at all relevant frequencies). She cited to hearing sensitivity in the left ear being within normal limits on separation from service. In an addendum opinion offered on April 2016 examination the examiner also acknowledged a puretone threshold shift at 500Hz and 1000Hz in the left ear, but opined the shifts was not considered a significant one (showing aggravation of the hearing loss disability during service). It is not in dispute that the Veteran has a left ear hearing loss disability, and was exposed to considerable noise in service. What remains necessary to substantiate his claim is evidence of a nexus between the current left ear hearing loss disability and his service (exposure to noise therein). As the Veteran’s April 1969 service entrance examination found a left ear hearing loss disability (shown by the 60 decibel puretone threshold at 4000 Hertz), the presumption of soundness on entry in service does not apply (as to left ear hearing loss disability); a left ear hearing loss disability was incurred prior to service. The analysis turns to whether the pre-existing left ear hearing loss was aggravated by service. Aggravation is established by showing an increase in disability during service. Aggravation may not be considered where there was no increase in severity of a disability during service. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). Consequently, the critical question in this matter is whether the pre-existing left ear hearing loss is shown to have increased in severity beyond natural progression during, or as a result of, service. Whether pre-existing disability increased in severity beyond natural progression of the disease during service (here not obvious in light of the up and down shifts in puretone thresholds between service entrance and separation) is a medical question. It requires medical expertise, applying medical principles to the information provided by diagnostic studies (audiometry). See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The initial observation is that while service entrance audiometry provided findings that reflected a left ear hearing loss disability, service separation audiometry found normal left ear hearing (by puretone thresholds). Based on those findings alone, an increase in left ear hearing loss disability during service is not shown. However, because there were increases in puretone thresholds at 500 and 1000 Hertz during service, medical guidance was sought (regarding whether shifts were significant, reflecting an increase in disability. In the opinion offered on April 2016 examination, the audiologist addressed that question observing that the shifts shown were not significant, and did not reflect an increase in left ear hearing loss disability during service. [The Board notes that such conclusion is buttressed by the finding of a 15 decibel puretone threshold at 500 Hertz on February 2014 examination (more than 40 years after the Veteran’s separation from service.] That opinion reflects familiarity with the factual data, and invokes medical principles (regarding the significance of certain puretone threshold shifts). The examiner has subject matter expertise, and the opinion is probative evidence in the matter. Because there is no competent (medical opinion) evidence to the contrary, it is persuasive. Aggravation of the Veteran’s left ear hearing loss disability during service is not shown. The preponderance of the evidence is against the claim; accordingly, the appeal in the matter must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Naumovich, Law Clerk