Citation Nr: 18147655 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 16-16 305 DATE: November 5, 2018 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT 1. Hearing loss was noted at the time of the Veteran’s entrance into active military service. 2. There is evidence that the Veteran’s preexisting hearing loss disability was aggravated by his active service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 1131, 1153, 1154, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1970 through February 1972. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. Entitlement to service connection for bilateral hearing loss Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In the case of a veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war VA shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service. 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (d). A Veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence (obvious or manifest) establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C. § 1111 (2012); 38 C.F.R. § 3.304 (b) (2017). Noted means “[o]nly such conditions as are recorded in examination reports.” 38 C.F.R. § 3.304 (b). “Clear and unmistakable evidence” is an “onerous” evidentiary standard requiring that the conclusion be “undebatable.” Cotant v. Principi, 17 Vet. App. 116 (2003) (citing Laposky v. Brown, 4 Vet. App. 331 (1993)). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during that active service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Aggravation may not be conceded where the disability underwent no increase in severity during service. 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306 (2017). A lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, will not be considered service connected unless the disease or injury is otherwise aggravated by service. 38 C.F.R. § 3.306 (b). Service treatment records include an August 11, 1970 letter from E.E.M, MD, who diagnosed the Veteran as having bilateral hearing loss. That letter referenced and included the findings of an August 1970 audiology examination. However, after referencing these letters and conducting another examination, which still showed some degree of hearing loss, the Veteran’s September 1970 induction examination indicated that the Veteran’s hearing loss was not considered disabling. The Veteran was deemed qualified for service. Nevertheless, as bilateral hearing loss was noted at service entrance, the presumption of soundness would not apply. The question now before the Board is whether there was aggravation of the Veteran’s preexisting hearing loss disability. There is conflicting evidence addressing this question. The Veteran’s STRs do not contain any complaints of hearing loss. The Veteran submitted a statement explaining he did not report to medical because he believed his complaints of hearing loss were minor compared to other servicemember injuries. At separation, the Veteran was given a Whispered Voice test hearing exam which resulted in 15/15 for right ear hearing and 15/15 for left ear hearing indicating the Veteran had normal hearing. The Veteran submitted several buddy statements from friends, roommates and coworkers as to their observations of his ability to hear. After making the determination that the Veteran met requirements for hearing loss for VA purposes, a May 2012 examiner determined the Veteran’s hearing loss was not caused by or developed as a result of his military service. He explained the Veteran’s hearing loss was not aggravated beyond normal progression by military service because the Veteran’s separation exam “showed normal hearing by Whispered Voice test” and the Veteran’s hearing loss did not correspond with his duties during military service. The examiner also stated the Veteran’s report of noise from mortar explosions would not account for the severity of his current hearing impairment. The June 2018 examiner stated the Veteran entered military service with preexisting hearing loss in both ears. He stated that exposure to aircraft noise, mortar and gunfire noise aggravated the Veteran’s disability. The examiner explained that even though the Veteran was a non-combat servicemember serving in Vietnam as a postal clerk, daily exposure to aircraft noise can cause high frequency hearing loss. The examiner commented on Whispered Voice tests, stating they are “insensitive to high frequency hearing loss… and are not reliable evidence of normal hearing or hearing impairment.” He believed that it was more likely than not the Veteran’s hearing loss was aggravated beyond normal progression as a result of service. In view of the totality of the evidence, including the recognition of in-service noise exposure, current finding of sensorineural hearing loss, the 2018 VA examiner’s medical opinion, and the credible lay assertions of record, the Board finds the medical evidence establishes that the Veteran’s preexisting bilateral hearing loss disability was aggravated by his military service. The negative 2012 is no more or less probative than the 2018 examination. Service connection for bilateral hearing loss is warranted. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Mahmoudi, Associate Counsel