Citation Nr: 18148099 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 15-33 485 DATE: November 6, 2018 ORDER Service connection for bilateral hearing loss is denied. FINDING OF FACT 1. The Veteran’s right ear hearing loss is not shown to be causally or etiologically related to any disease, injury, or incident during service, and did not manifest within one year of separation from active duty. 2. The Veteran’s left ear hearing loss was noted on entry to service and did not increase in severity during service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 101(24), 1111, 1112, 1131, 1137, 1153, 5107; 38 C.F.R. §§ 3.1(d), 3.6(a), 3.102, 3.303, 3.304, 3.306, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from September 1963 to September 1965, with subsequent service in the United States Army Reserve. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2017, the Board remanded the case for additional development and it now returns for further appellate review. Entitlement to service connection for bilateral hearing loss. The Veteran contends service connection is warranted for bilateral hearing loss as his right ear hearing loss is directly related to noise exposure from firing rifles during his active duty and Reserve service, and his preexisting left ear hearing loss worsened due to such in-service noise exposure. A Veteran is a person who served in the active military, naval, or air service and who was discharged or released under conditions other “than dishonorable.” 38 C.F.R. § 3.1(d). The term “active military, naval, or air service” includes: (1) active duty; (2) any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). ACDUTRA includes full-time duty performed by members of the National Guard of any State or the Reserve. 38 C.F.R. § 3.6(c). INACDUTRA includes duty other than full-time duty performed by a member of the Reserve or the National of any State. 38 C.F.R. § 3.6(d). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). In Smith v. Shinseki, 24 Vet. App. 40, 45 (2010), it was clarified that the presumption applies when a veteran has been “examined, accepted, and enrolled for service,” and where that examination revealed no “defects, infirmities, or disorders.” 38 U.S.C. § 1111. Plainly, the statute requires that there be an examination prior to entry into the period of service on which the claim is based. See Crowe v. Brown, 7 Vet. App. 238, 245 (1994) (holding that the presumption of sound condition “attaches only where there has been an induction examination in which the later-complained-of disability was not detected” (citing Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991)). Only such conditions recorded in examination reports are considered as noted. 38 C.F.R. § 3.304(b). History of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304(b)(1). Therefore, where there is evidence showing that a disorder manifested or was incurred in service, and this disorder is not noted on the veteran’s entrance examination report, this presumption of soundness operates to shield the veteran from any finding that the unnoted disease or injury preexisted service. See Gilbert v. Shinseki, 26 Vet. App. 48 (2012); Bagby, 1 Vet. App. at 227; 38 C.F.R. § 3.304(b). Such presumption is only rebutted where the evidence clearly and unmistakably shows that the veteran’s disability (1) existed before acceptance and enrollment into service and (2) was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby, 1 Vet. App. at 227; VAOPGCPREC 3-2003 (July 16, 2003). The two parts of this rebuttal standard are referred to as the “preexistence prong” and the “aggravation prong.” Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). To satisfy this second-prong requirement for rebutting the presumption of soundness, the government must show by clear and unmistakable evidence either that there was no increase in disability during service or that any increase in disability was “due to the natural progression” of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). However, if a pre-existing disability is noted upon entry into service, then the veteran cannot bring a claim for service connection for that disability, only a claim for service-connected aggravation of that disability. In that case, 38 U.S.C. § 1153 applies and the burden falls on him, not VA, to establish aggravation. Wagner, 370 F.3d at 1096; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994); 38 C.F.R. § 3.306. 38 U.S.C. § 1153 provides that a preexisting injury or disease will be considered to have been aggravated by active military, naval, or air 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. The occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a). Evidence of the veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as organic diseases of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995 opinion, VA’s Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. Alternatively, when a disease at 38 C.F.R. § 3.309 (a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303 (b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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, 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. If the degree of hearing loss noted on an entrance examination did not meet VA’s definition of a “disability” for hearing loss under 38 C.F.R. § 3.385, the veteran is entitled to the presumption of soundness under § 1111. McKinney v. McDonald, 28 Vet. App. 15, 21 (2016). The United States Court of Appeals for Veterans Claims (Court) has held that service connection can be granted for hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for a hearing loss which first met VA’s definition of disability after service. Hensley, supra, at 159. 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). At the outset, the Board notes that the Veteran has a current diagnosis of bilateral hearing loss as demonstrated at a January 2015 VA examination. Further, noise exposure during service has been acknowledged due to the high probability of acoustic trauma based on the Veteran’s frequent exposure to small arms fire. Additionally, as will be discussed below, the Veteran’s left ear hearing loss was noted upon his September 1963 entrance examination. See McKinney, supra. Therefore, the remaining inquiries before the Board are whether his right ear hearing loss was incurred during his military service and whether his left ear hearing loss was aggravated by his military service. In this regard, the Veteran’s service treatment records (STRs) noted defective hearing upon his entrance on active service, and his September 1963 entrance examination audiogram showed hearing loss for VA purposes in his left ear as converted from American Standards Association (ASA) to International Standards Organization–American National Standards Institute (ISO-ANSI) units, as is required for all service department audiometric findings conducted prior to January 1, 1967. Similar results were found on audiometric testing that occurred a couple weeks later in October 1963. However, audiometric testing on the Veteran’s separation from service in July 1965 showed that his hearing acuity in the left ear actually improved. In regard to the Veteran’s right ear hearing loss, audiometric testing in his STRs never showed hearing loss for VA purposes, even after conversion to ISO-ANSI standards. Specifically, audiometric findings from his September 1963 entrance examination showed some hearing acuity outside the normal ranges with puretone thresholds of 30 and 25 decibels at 500 and 2000 Hertz, respectively. However, audiometric findings from his July 1965 separation examination showed a general improvement in hearing acuity, except for a worsening at 2000 Hertz to a puretone threshold of 30 decibels. Notably, while such findings show hearing acuity outside the normal range, they do not reach the threshold to be considered hearing loss for VA purposes. The Veteran first underwent a VA examination for his hearing loss in November 2009, at which time he first showed right ear hearing loss for VA purposes. Further, VA opinions addressing the etiology of the Veteran’s bilateral hearing loss were rendered in November 2009, January 2010, March 2010, and January 2015; however, as discussed in the January 2017 remand, such were found to be inadequate for various reasons. Consequently, they are afforded no probative weight. In the January 2017 remand, the Board also determined that a private medical opinion from J.G., Au.D., submitted in October 2014 was inadequate to decide the claim. In this regard, while J.G. noted the Veteran’s current bilateral hearing loss, his in-service noise exposure, and his reports of worsening symptoms after such noise exposure, and concluded that the Veteran’s hearing loss is more likely than not due directly to such noise exposure, he did not consider the entirety of the evidence of record as there is no indication that J.G. considered his in-service audiograms, the lack of a diagnosis of right ear hearing loss for many years after service, or the Veteran’s post-service noise exposure. Furthermore, he failed to address aggravation of the Veteran’s left ear hearing loss. Therefore, the Board affords the private medical opinion no probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion...must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). Following the Board remand, a VA addendum opinion addressing the etiology of the Veteran’s bilateral hearing loss was obtained in February 2017. At such time, the examiner noted a review of the record and then opined that the Veteran’s left ear hearing loss was not aggravated beyond its natural progression by an in-service event, injury, or illness. The examiner noted a conversion of findings to ISO-ANSI units, and found there was no progression in the disorder from entrance to separation. In fact, he observed that the Veteran’s hearing acuity improved at higher frequencies during such time. The examiner also opined that the Veteran’s right ear hearing loss was less likely than not incurred in or caused by his service, noting that the Veteran’s hearing was normal in both ears at separation from active duty and during Reserve service. He further explained that he disagreed with the October 2014 private opinion as it was clearly and unmistakably in error. He supported such opinion by noting that the October 2014 opinion did not take into account the vast length of time between service and the time of claim, nor did it consider the Veteran’s non-service noise exposure from hunting. Finally, in support of his opinions, the examiner included references to the medical literature he relied on. The Board finds the February 2017 opinion highly probative to the question of a nexus between the Veteran’s current bilateral hearing loss and his military service. In this regard, such the opinion considered all of the pertinent evidence of record, to include the statements of the Veteran as well as his STRs from his active duty and Reserve service, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez, supra; Stefl; supra. Further, such opinion directly addressed the conflicting medical evidence of record, namely the October 2014 private opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (VA examination reports were more probative because they were more thorough and detailed, they discussed the conflicting opinions, and examiners had access to the claims file). The Board notes that, in his October 2018 Appellant’s Post-Remand Brief, the Veteran’s representative argued that VA did not adequately assess the Veteran’s hearing loss. However, the Board finds such argument to be without merit. In this regard, a VA examiner is presumed to have properly discharged his or her duties as a health professional (presumption of regularity) in a review of the record, in interviewing the Veteran, and supporting his or her opinion with medical analysis applied to the significant facts of the case. See Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed Cir. 2009) (applying the presumption of regularity to VA medical examiners in the discharge of their regular duties). The presumption of regularity is rebuttable by clear evidence to the contrary. Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004). In this regard, the Veteran’s representative has not alleged any specific deficiency in regard to the February 2017 VA examiner’s opinion. Hilkert v. West, 12 Vet. App. 145, 151 (1999) (an appellant bears the burden of persuasion to show that the Board’s reliance on an examiner’s opinion was in error). Moreover, as discussed in the preceding paragraph, the Board finds that such is highly probative to the instant matter. Consequently, the Board finds the Veteran’s representative’s argument to be without merit. The Board has also considered the Veteran’s assertions that his bilateral hearing loss is related to his acknowledged in-service noise exposure; however, such determination is a complex medical matter requiring training and experience that he does not possess. In this regard, the Veteran is not shown to have any medical training that would qualify him to provide an opinion regarding the etiology of hearing loss. Here, the question regarding the etiology of such disorder involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect. Consequently, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, i.e., the etiology of bilateral hearing loss, such falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Accordingly, the Veteran’s opinion as to the etiology of his hearing loss is not competent evidence and, therefore, is afforded no probative weight. The Veteran’s reports that his left ear hearing loss was worsened by his in-service noise exposure are likewise not probative. In this regard, although the Board recognizes that the Veteran sincerely believes his left ear hearing loss was aggravated by service, such contention is refuted by the audiometric findings which showed an improvement in hearing acuity during service. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Kahana, supra (the silence in a medical record can be weighed against lay testimony if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the medical record being evaluated by the fact finder). Importantly, the February 2017 examiner also considered such evidence and the Veteran’s statements, and opined that his left ear hearing loss was not aggravated by service. Consequently, the Board finds the February 2017 medical professional’s opinion, given after a full review of the record, more probative than the Veteran’s reports. See Jandreau, supra. The Board has also considered whether service connection for right ear hearing loss is warranted on a presumptive basis, to include on the basis of continuity of symptomatology. In this regard, the clinical evidence of record fails to show that the Veteran manifested such disease within the year following his discharge from active duty service. The first diagnosis of record of right ear hearing loss is at the November 2009 VA examination. Further, the February 2017 opinion noted again that the Veteran’s hearing in his right ear was normal during his Reserve service. Therefore, the Board finds that presumptive service connection for right ear hearing loss, to include on the basis of continuity of symptomatology, is not warranted. Consequently, the Board finds that right ear hearing loss is not shown to be causally or etiologically related to any disease, injury, or incident during service, and did not manifest within one year of separation from active duty, and left ear hearing loss, which was noted on entry to service, did not increase in severity during service. Therefore, service connection for bilateral hearing loss is not warranted. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim of service connection for bilateral hearing loss. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. 5107; 38 C.F.R. 3.102; Gilbert, supra. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jonathan M. Estes, Associate Counsel