Citation Nr: 18150260 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 16-23 951 DATE: November 14, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT Bilateral hearing loss disability was noted on the Veteran’s entrance examination, and the most probative evidence shows that his preexisting hearing loss was not aggravated during service. CONCLUSION OF LAW The criteria for establishing service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1153, 5107 (2012); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309, 3.385 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1966 to April 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to service connection for bilateral hearing loss Service connection may be established 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. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309 (a) may be considered for service connection under 38 C.F.R. § 3.303 (b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). If a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but may bring a claim for service-connected aggravation of that disorder. 38 U.S.C. § 1153. A preexisting disease or injury will be considered to have been aggravated by military service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a). Where a preexisting condition was noted upon entry into service, the veteran has the burden of showing that the preexisting condition worsened in service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). If the veteran establishes worsening in service, then the disability is presumed to have been aggravated in service, and the burden shifts to VA to show by clear and unmistakable evidence that the worsening of the condition was due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; Horn v. Shinseki, 25 Vet. App. 231, 235 n. 6 (2012). 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. § 1153; 38 C.F.R. § 3.306; Green v. Derwinski, 1 Vet. App. 320 (1991). “Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered ‘aggravation in service’ unless the underlying condition, as contrasted to symptoms, is worsened.” See Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). For VA compensation purposes, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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 (2018). The Veteran is seeking service connection for bilateral hearing loss. He asserts that his current hearing loss was a result of his time in service. As an initial matter, the Board acknowledges that the Veteran has a current bilateral hearing loss meeting the definition of a disability for VA compensation purposes as shown on private audiogram in April 2015 and the May 2016 VA examination. See 38 C.F.R. § 3.385. Accordingly, the first criteria for establishing service connection, a current disability, has been met. Service treatment records show the Veteran had an enlistment audiological evaluation in January 1966, at which time auditory thresholds were recorded. The Board observes that service department audiometric readings during the Vietnam era must be converted from American Standards Association (ASA) units to International Standard Organization (ISO) units. The Board will list both the ASA units and the conversion to ISO units in the charts below for both service examinations. On the audiological evaluation in January 1966, pure tone thresholds, in decibels, were as follows: HERTZ (ASA) 500 1000 2000 3000 4000 RIGHT 0 0 0 - 50 LEFT 0 0 0 - 50 HERTZ (ISO) 500 1000 2000 3000 4000 RIGHT 15 10 10 - 55 LEFT 15 10 10 - 55 The Veteran was given a profile of H2 for his hearing. In this regard, a rating of “1” is the highest rating possible and means that the inductee’s condition in that category should not result in any limitation in military assignments. Ratings from “2” to “4” indicate the existence of physical condition that will result in progressively more severe restrictions on the type of assignment that the inductee may be given. See McIntosh v. Brown, 4 Vet. App. 533, 555 (1993). Furthermore, a summary of defects and diagnoses for this January 1966 examination list bilateral deafness. The Veteran underwent a separation examination in February 1968. On the audiological evaluation in February 1968, pure tone thresholds, in decibels, were as follows: HERTZ(ASA) 500 1000 2000 3000 4000 RIGHT 0 0 0 0 20 LEFT 0 0 0 10 30 HERTZ (ISO) 500 1000 2000 3000 4000 RIGHT 15 10 10 10 25 LEFT 15 10 10 10 35 Following a review of the record, the Board concludes that the probative evidence is against the claim. The entrance examination shows the Veteran suffered from a preexisting bilateral hearing loss disability pursuant to 38 C.F.R. § 3.385. Because the Veteran had a preexisting bilateral hearing loss disability “noted” upon entry into service, the presumption of soundness does not attach. Accordingly, 38 U.S.C. § 1153 applies and the Veteran has the burden of showing that there was an increase in his hearing loss disability during service for the presumption of aggravation to attach. Wagner v. Principi, 370 F.3d 1089, 1090 (2004). However, the Veteran’s separation examination showed his hearing had improved at the time of separation. Thus, the preexisting hearing loss did not undergo a permanent worsening during service. Following service, the first evidence of hearing loss of record is the 2015 private audiogram. Thus, there is no evidence of hearing loss to a compensable degree during the year following discharge from service to support a finding of aggravation on a presumptive basis. 38 C.F.R. § 3.309(a). In sum, a hearing loss disability was noted on the Veteran’s entrance examination and the hearing loss did not undergo a permanent worsening during service or within the year following discharge from service. Accordingly, the preponderance of the probative evidence reflects that the preexisting hearing loss was not aggravated during service, and the claim for service connection for bilateral hearing loss is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claims, that doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Asare, Associate Counsel