Citation Nr: 18149991 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 16-48 766 DATE: November 14, 2018 ORDER New and material evidence has been received to reopen the claim for entitlement to service connection for bilateral hearing loss and is granted. Entitlement to service connection for right ear hearing loss is granted. Entitlement to service connection for left ear hearing loss is granted. FINDINGS OF FACT 1. An unappealed August 1975 rating decision denied the Veteran service connection for bilateral hearing loss and is final. 2. A right ear hearing loss for VA purposes was noted at the time of the Veteran’s examination, acceptance and enrollment for military service. 3. There was an increase in the severity of the Veteran’s right ear hearing loss during service, and there is no clear and unmistakable evidence that such increase was due to the natural progress of the disability. 4. A left ear hearing loss for VA purposes was noted at the time of the Veteran’s examination, acceptance and enrollment for military service. 5. There was an increase in the severity of the Veteran’s left ear hearing loss during service, and there is no clear and unmistakable evidence that such increase was due to the natural progress of the disability. CONCLUSIONS OF LAW 1. The August 1975 rating decision is final; new and material evidence has been received to reopen the claim of service connection for bilateral hearing loss. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103. 2. A preexisting right ear hearing loss was aggravated inservice. 38 U.S.C. §§ 1110, 1111, 1153, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306, 3.385. 3. A preexisting left ear hearing loss was aggravated inservice. 38 U.S.C. §§ 1110, 1111, 1153, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1963 to May 1966. 1. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for bilateral hearing loss The Veteran submitted a claim for service connection for bilateral hearing loss in July 1975. Entitlement to service connection for bilateral hearing loss was denied in an August 1975 rating decision. The Veteran did not appeal the decision or submit any pertinent/relevant evidence within one year of notice of this rating decision, and it is therefore found to be a final decision. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Evidence is new if it has not been previously submitted to agency decision makers. Id. Evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. The evidence received since the prior denial includes: (i) private medical treatment records, (ii) a VA examination, and (iv) lay evidence. The Board finds that these records are new and material evidence which directly relate to an unestablished fact necessary to substantiate the Veteran’s claim. The claim of entitlement to service connection for bilateral hearing loss is therefore reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. Entitlement to service connection for right ear hearing loss Generally, 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. 38 U.S.C. § 1111. A preexisting disability or disease will be considered to have been aggravated by active service when there is an increase in disability during service, unless there is clear and unmistakable evidence (obvious and manifest) that the increase in disability is due to the natural progress of the disability or disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a), (b); see Falzone v. Brown, 8 Vet. App. 398, 402 (1995) (holding that the presumption of aggravation created by section 3.306 applies only if there is an increase in severity during service); VAOPGCPREC 3-03; 69 Fed. Reg. 25,178 (2004). The Board notes the Veteran’s service audiological examinations are presumed to be reported in standards set forth by the American Standards Association (ASA). Based on knowledge of service audiometric practice, it is assumed that service department audiometric tests prior to October 31, 1967, were in ASA (American Standard Association) units, and require conversion to ISO units. The ASA units generally assigned lower numeric scores to hearing loss than do the ISO (International Organization for Standardization) units. Conversion to ISO units is accomplished by adding 15 decibels to the ASA units at 500 Hertz, 10 decibels to the ASA units at 1000 Hertz, 2000 Hertz, and 3000 Hertz, and 5 decibels to the ASA units at 4000 Hertz. See VA Interim Issues 21-66-16, 21-66-17 (June 6, 1966); 10-66-20 (June 8, 1966); DM&S Manual M-2, Part XVIII, Chapter 4, paragraph 4.02, Use of International Standards Organization (ISO) for Audiological Examinations. The scores for the Veteran’s entrance audiological evaluation in November 1962 have been converted from ASA to ISO, and puretone thresholds in the right ear at 500, 1000, 2000, 3000, and 4000 Hz were 10, 0, 10, 40, and 40 dB respectively. As such, a hearing loss disability in the right ear at 3000 and 4000 Hz for VA purposes was noted at the time of the Veteran’s examination, acceptance and enrollment for military service. Next, a review of the Veteran’s service treatment records show that the auditory threshold in the right ear increased above 40 decibels at 3000 and 4000 Hz. See April 1966 service audiogram report. See Kelly v. Brown, 7 Vet. App. 471 (1995) (holding that the Board, as factfinder, is permitted to interpret these results). The scores for the Veteran’s exit audiological evaluation in April 1966 have been converted from ASA to ISO, and puretone thresholds in the right ear at 500, 1000, 2000, 3000, and 4000 Hz were 20, 10, 15, 50, and 50 dB respectively. The Veteran was afforded a VA examination in August 2016. Puretone thresholds in the right ear at 500, 1000, 2000, 3000, and 4000 Hz were 40, 40, 60, 60, and 65 dB respectively. Speech recognition score obtained using the Maryland CNC Test was 94 percent for the right ear. The evidence shows that the Veteran currently has hearing loss in the right ear for VA purposes. The examiner expressed that the Veteran’s MOS of Aviation Electrician has a high probability for noise exposure. The examiner indicated that the Veteran’s right ear hearing loss pre-existed service and that the Veteran’s pre-existing hearing loss was not aggravated beyond normal progression in military service. The examiner expressed that there was no shift in hearing seen for the right ear. The examiner opined that with all things equally weighed, the Veteran’s right ear hearing loss is not due to or was not aggravated by military service. The Board finds that the examiner’s right ear hearing loss opinion to be inadequate and have no probative value as the examiner based his opinion on there being no shift in hearing. However, the Veteran’s entrance examination and separation examination revealed audiological shifting at 500, 1000, 2000, 3000, and 4000 Hz. Given that the examiner opined that the Veteran’s left ear hearing loss was aggravated beyond normal progression in military service based on the shift in hearing at the 4000 Hz level, the Board finds that resolving reasonable doubt in the Veteran’s favor, the Veteran’s right ear hearing loss was also aggravated beyond the normal progression in military service. As a result, the preexisting hearing loss in the right ear was aggravated by exposure to loud noise while in service and service connection is warranted. Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (“By requiring only an ‘approximate balance of positive and negative evidence’ the Nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding... benefits.”). 3. Entitlement to service connection for left ear hearing loss The scores for the Veteran’s entrance audiological evaluation in November 1962 have been converted from ASA to ISO and puretone thresholds in the left ear at 500, 1000, 2000, 3000, and 4000 Hz were 10, 5, 25, 55, and 40 dB respectively. As such, a hearing loss disability in the left ear at 3000 and 4000 Hz for VA purposes was noted at the time of the Veteran’s examination, acceptance and enrollment for military service. The scores for the Veteran’s exit audiological evaluation in April 1966 have been converted from ASA to ISO, and puretone thresholds in the left ear at 500, 1000, 2000, 3000, and 4000 Hz were 15, 10, 30, 55, and 55 dB respectively. The Veteran was afforded a VA examination in August 2016. Puretone thresholds in the left ear at 500, 1000, 2000, 3000, and 4000 Hz were 40, 45, 55, 60, and 60 dB respectively. Speech recognition score obtained using the Maryland CNC Test was 96 percent for the left ear. The evidence shows that the Veteran currently has hearing loss in the left ear for VA purposes. (Continued on the next page)   With regard to the left ear, the examiner indicated that there was a permanent positive threshold shift. The examiner also opined that the Veteran’s left ear hearing loss was at least as likely as not caused by or the result of an event in military service. The examiner noted that the Veteran’s enlistment examination revealed normal to moderate hearing loss with high frequency hearing loss noted. The examiner expressed that the Veteran’s discharge physical examination revealed normal to moderate hearing loss but with a shift in hearing seen at 4000 Hz. The examiner noted that the frequency of 4000 Hz is often associated with noise induced hearing loss. The examiner expressed that “with all things equally weighed,” the Veteran’s hearing loss was aggravated by military service. In addition, the examiner indicated that the Veteran’s left ear hearing loss was aggravated beyond normal progression in military service. As a result, the preexisting hearing loss in the left ear was aggravated by exposure to loud noise while in service and service connection is warranted. Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (“By requiring only an ‘approximate balance of positive and negative evidence’ the Nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding... benefits.”). LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M.D., Associate Counsel