Citation Nr: 18153905
Decision Date: 11/28/18	Archive Date: 11/28/18

DOCKET NO. 15-34 118
DATE:	November 28, 2018
ORDER
Service connection for left ear hearing loss is restored effective October 1, 2014.
FINDING OF FACT
The grant of service connection for left ear hearing loss was not clearly and unmistakably erroneous.
CONCLUSION OF LAW
The criteria for the restoration of service connection for left ear hearing loss have been met.  38 U.S.C. §§ 1131, 5109A; 38 C.F.R. §§ 3.105(d), 3.303, 3.306.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran had active service from June 1978 to July 1983.  This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision.  The Veteran testified before the undersigned Veterans Law Judge at a Board hearing in November 2018.
Restoration of Service Connection
Once service connection has been granted, it can only be severed where the evidence establishes that the grant was clearly and unmistakably erroneous (the burden being on the Government), and only where certain procedural safeguards have been met.  38 C.F.R. § 3.105(d); Stallworth v. Nicholson, 20 Vet. App. 482, 487 (2006).  VA’s regulation on severance contemplates consideration of evidence that post-dates the award of service connection, and VA is not limited to the law and the record that existed at the time of the original decision.  Stallworth at 488.
Clear and unmistakable error is a very specific and rare kind of error.  It is the kind of error of fact or law that, when called to the attention of reviewers, compels the conclusion, to which reasonable minds could not differ, that the results would be manifestly different but for the error.  See Fugo v. Brown, 6 Vet. App. 40, 43 (1993).
The basis of severance was explained in a November 2012 rating decision.  A January 2012 VA examination recorded a left ear speech recognition score of 24 percent, which meets VA’s criteria for hearing loss.  However, the examiner stated that this score was not appropriate based on the discrepancy between speech discrimination and the Veteran’s pure tone thresholds, which were normal.  Moreover, the examiner could not provide an etiology opinion without resorting to speculation.
Based on the evidence of record, the Board concludes that the grant of service connection was not clearly and unmistakably erroneous.  First, VA records from September 2016 show a current diagnosis of mild sloping to profound left ear sensorineural hearing loss.
Second, under 38 C.F.R. § 3.306, a preexisting condition will be considered to have been aggravated by 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.  During the Veteran’s March 1978 enlistment examination, pure tone thresholds, in decibels, were as follows: 
 	 	 	HERTZ	 	 
 	500	1000	2000	3000	4000
LEFT	10	45	55	60	65
An additional examination was conducted in July 1981.  Pure tone thresholds, in decibels, were as follows: 
 	 	 	HERTZ	 	 
 	500	1000	2000	3000	4000
LEFT	5 	15 	60 	70 	60 
The January 2012 VA examiner specifically stated that the Veteran had “moderate to moderately severe” hearing loss at enlistment which increased to “moderately severe to severe” during service.  In other words, the Veteran’s preexisting hearing loss increased in severity during service and was therefore aggravated by service.  
In sum, because the Veteran has current left ear hearing loss, and because his preexisting left ear hearing loss was aggravated by service, it is not “undebatable” that the grant of service connection was erroneous.  Service connection is restored.
 
Nathaniel J. Doan
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Shamil Patel, Counsel