Citation Nr: 18156475 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 16-08 275 DATE: December 11, 2018 ORDER Entitlement to service connection for left ear hearing loss is denied. REMANDED Entitlement to service connection for right ear hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. Audiometric testing results conducted in conjunction with the Veteran’s April 1978 entrance examination reflect high frequency hearing loss at the 4000 and 6000 Hertz levels in the left ear. Therefore, he is not entitled to a presumption of soundness as to left ear hearing loss. 2. The most probative evidence of record establishes that the Veteran’s pre-existing left ear hearing loss, which was noted at entry, was not aggravated by the Veteran’s active duty military service. Exit examination audiometry testing results showed left ear hearing levels equivalent to those recorded at service entry. CONCLUSION OF LAW The criteria for entitlement to service connection for left ear hearing loss have not been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1978 to August 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). In the February 2016 substantive appeal, the Veteran waived his right to an optional Board hearing. Accordingly, the undersigned Veterans Law Judge has been assigned to consider this matter pursuant to 38 C.F.R. § 19.3(a). In a fax coversheet accompanying the February 2016 substantive appeal, the Veteran requested a copy of the October 2013 VA examination results. In October 2018, VA responded with the appropriate documentation. Consequently, the Board may proceed with appellate consideration. Relevant evidence received since the January 2016 Statement of the Case was either submitted by the Veteran or subject to the waiver of initial RO consideration received in September 2018. 38 U.S.C. § 7105(e); 38 C.F.R. § 20.1304(c). Neither the Veteran nor his representative has raised any issues with the duty to notify or the duty to assist in obtaining documentary evidence. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board need not discuss any potential issues in this regard. The Veteran has challenged the adequacy of the October 2013 VA examination, and his contentions are addressed below. 1. Entitlement to service connection for left hearing loss is denied. The Veteran claims that his current hearing loss is the result of acoustic trauma he experienced during his active duty service. He argues that during service he was exposed to loud noises from various weapons trainings, as well as loud engines on track vehicles in the motor pool. See April 2013 lay statement. To establish direct service connection, a veteran must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For the purposes of service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies 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. The October 2013 VA examiner determined that the Veteran has experienced left ear hearing loss for VA compensation purposes within the appellate period. Generally, a veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service. 38 U.S.C. §§ 1111, 1137; 38 C.F.R. § 3.304(b). Such conditions are considered to be pre-existing. In this case, the results of audiometric testing conducted in conjunction with the Veteran’s April 1978 enlistment examination reflect that the Veteran had high frequency hearing loss at 4000 and 6000 Hertz in the left ear (70 and 70 decibels, respectively). An auditory threshold of 70 decibels at the frequency of 4000 Hertz satisfies VA’s definition of recognized hearing loss. See 38 C.F.R. § 3.385; see also McKinney v. McDonald, 28 Vet. App. 15, 29 (2016) (pre-existing hearing loss is “noted” upon entry into service if the entrance auditory examination shows hearing loss that rises to the level of a disability under VA law). To this end, the Veteran’s April 1978 enlistment examination audiogram documents pre-existing hearing loss in the Veteran’s left ear at enlistment entry. As such, the presumption of soundness does not attach to the Veteran’s left ear hearing loss. See 38 U.S.C. § 1132; 38 C.F.R. § 3.304(b). Where, as here, a veteran is otherwise not presumed sound on entrance, 38 U.S.C. § 1153 applies, meaning that for service connection to be warranted, it must be shown that a pre-existing injury or disease was aggravated by a veteran’s active military, naval, or air service. Aggravation will be found where there is an increase in disability during such service (presumption of aggravation), 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. To trigger the presumption of aggravation, the Veteran must simply show, via evidence of record, that there was an increase in disability during his time in service. If a veteran meets that burden and shows that an increase in severity occurred, the burden then shifts to VA to show whether such increase is clearly and unmistakably due to the natural progression of the pre-existing disability rather than due to service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Horn v. Shinseki, 25 Vet. App. 231, 235 (2012); C.F.R. § 3.306(a). 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(b). Therefore, the remaining question is whether the Veteran’s pre-existing left ear hearing loss was aggravated during service. This question was posed to the October 2013 VA examiner, who explained, in pertinent part: The report of medical exam upon enlistment 04/1978 shows a high frequency hearing loss in the left ear….Hearing profile is listed as H2. The report of medical exam upon separation 06/1981 shows no change in the hearing levels…the Veteran entered the service with a hearing loss in the left ear … with no change during active duty. Therefore, it is less likely than not that the hearing loss was aggravated as a result of noise incurred during service. While the Board acknowledges that the examiner checked the box indicating that the Veteran’s pre-existing left ear hearing loss was aggravated beyond normal progression during military service, it is clear from the examiner’s rationale that this box was marked in error. Review of the Veteran’s audiograms from both entry and discharge support the VA examiner’s conclusion, as the exit audiogram showed no documented decrease in hearing acuity at any frequency level in the left ear when compared to the entrance audiogram. The Veteran’s representative has challenged the adequacy of the October 2013 VA examination on two bases. First, he argues that the examiner “noted that the Veteran was shown with hearing loss at entrance and there was no change at separation,” but that such analysis is “patently inconsistent with the actual service medical records which show a significant improvement between entrance and discharge.” He further argues that the examiner failed to explain how the Veteran’s hearing could have improved despite his in-service acoustic trauma. The Board is not persuaded by this argument. The VA examiner is a board-certified audiologist capable of conducting and reviewing audiogram testing, and her findings are entitled to the presumption of regularity. Under this legal presumption, it is presumed that the VA examiner is qualified to review medical evidence and issue medical opinions, absent specific evidence to the contrary, such as a competent showing that the examiner lacks requisite qualifications. Parks v. Shinseki, 716 F.3d 581 (Fed. Cir. 2013); Sickels v. Shinseki, 643 F.3d, 1362(Fed. Cir. 2011); Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009). In this case, there is no competent evidence that the October 2013 VA examiner was not fully qualified and competent to provide an examination, review the Veteran’s service audiograms, and issue a medical opinion; and thus, there is no error in the Board’s reliance on the examiner’s report. While the Veteran’s representative may be competent to interpret basic audiological graphs, the October 2013 VA audiologist is a trained medical professional who interpreted the service audiograms and determined there was no significant change in the Veteran’s pre-existing left ear hearing during service. Under this factual circumstance, the Board affords more evidentiary weigh to the expert opinion of the VA examiner stating there was no change in the Veteran’s left ear hearing between service entrance and discharge, over the lay assertions of the Veteran’s representative. Moreover, the ultimate inquiry in this adjudication is whether the Veteran’s pre-existing left ear hearing was aggravated by his service. The representative appears to be conceding that no aggravation occurred, as he argues—under his view of the evidence—that the Veteran’s left ear hearing loss actually improved over the course of the Veteran’s service. Second, the Veteran’s representative argues that the VA examiner failed to consider all relevant facts simply because she acknowledged the Veteran’s statements concerning additional duties during service, but in the opinion only referenced his military occupational specialty of “surveyor.” Again, the Board is not persuaded. The fact that the VA examiner included the Veteran’s reports of additional job duties in the narrative section of her report suggests to the Board that she was aware of the Veteran’s lay contentions and considered them in issuing her medical opinion. It is clear from the record evidence that the Veteran experienced acoustic trauma during service, and the VA examiner acknowledged such in her report. Ultimately, this acoustic trauma had no effect on the Veteran’s hearing, as the exit examination showed no worsening of the Veteran’s left ear hearing loss when compared to the entrance audiogram. Contrary to the Veteran’s representative’s arguments, the Board finds that the VA examiner gave ample consideration to the Veteran’s lay contentions, reviewed the relevant record evidence, and issued a through and well-reasoned medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). For these reasons, the Board finds that the October 2013 VA examiner’s opinion is entitled to significant probative value in this determination. In a December 2017 lay statement, the Veteran argued that the June 1981 audiogram was inaccurate “and is not the true results because [he] was told [he] had the hearing of a 65 year old man [at service discharge].” While the Veteran may have been told this during the course of his separation proceedings, this does not negate the validity of the recorded audiogram results. There are no indications anywhere in the Veteran’s service treatment records that his April 1978 and June 1981 audiograms are in any way inaccurate. They were performed by qualified medical professionals. In the absence of corroborating evidence, the Board cannot find the Veteran’s statements alleging error in his service audiograms to be credible, and his contention is rejected. The Board observes that the Veteran submitted a March 2018 private audiologist’s opinion suggesting that the Veteran’s current left ear hearing loss is “at least in part more likely as not due to noise exposure in the military.” This medical opinion is not probative in this determination because the private audiologist did not address the central inquiry—whether the Veteran’s pre-existing left ear hearing loss was aggravated by his military service. Furthermore, even if the audiologist’s opinion was on point and relevant, it was conclusory in nature and unaccompanied by an explanatory rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (“[A] mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor’s opinion.”). There is also no indication she reviewed his service records, which is critical here, considering his left ear hearing loss was shown at entry. For these reasons, the March 2018 private audiologist’s medical nexus opinion is entitled to no evidentiary weight. In summary, the most probative evidence of record proves that the Veteran’s pre-existing left ear hearing loss was not aggravated by his military service, as this disability did not undergo any increase in severity during the course of the Veteran’s military’s service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b). Accordingly, the Veteran’s claim of entitlement to service connection for left ear hearing loss must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for right ear hearing loss is remanded. Unlike the left ear, the Veteran did not exhibit pre-existing hearing loss in the right ear at service entry. The April 1978 audiogram documented pure tone thresholds of 5, 15, 15, 15, and 45 in the right ear at 1000, 2000, 3000, 4000, and 6000 Hertz, respectively. Because the degree of right ear hearing loss noted on the Veteran’s entrance medical examination (45 decibels at 6000 Hertz) 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 38 U.S.C. § 1111 for right ear hearing loss. The October 2013 VA examiner’s opinion is insufficient to allow for just adjudication of the Veteran’s claim seeking entitlement to service connection for right ear hearing loss. While the examiner marked that the Veteran’s hearing loss was less likely than not caused by or a result of an event in military service, the provided rationale mistakenly focused on whether there was any worsening of the Veteran’s right ear hearing loss between service entrance and discharge. The examiner failed to adequately explain why the Veteran’s current right ear hearing loss was not caused by or etiologically related to his military service. The Veteran has submitted a March 2018 medical nexus statement, issued by a private audiologist, opining that the Veteran’s right ear hearing loss is “at least in part more likely as not due to noise exposure in the military.” This medical nexus opinion is conclusory, and its conclusion is unsupported by rationale or explanation; thus, the opinion is of no probative value in this determination. Stefl, 21 Vet. App. at 124. As the current medical nexus opinions of record are legally deficient, the Board finds that a remand is warranted to obtain a new VA examination assessing the nature and etiology of the Veteran’s current right ear hearing loss disability. 2. Entitlement to service connection for tinnitus is remanded. As the record currently stands, there are two conflicting medical nexus opinions regarding the etiology of the Veteran’s claimed tinnitus disability; neither of which are sufficient to adjudicate the claim. Accordingly, the Board finds that a remand is warranted to obtain a new VA examination assessing the nature and etiology of the Veteran’s tinnitus disability. The matters are REMANDED for the following action: Schedule the Veteran for a VA audiological examination to assess the current degree of the Veteran’s right ear hearing loss. The examiner must review the Veteran’s electronic claims file, and note such review in the examination report. The examiner is then requested to address the following inquiries: 1) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s right ear hearing loss is caused by, or otherwise etiologically related to his active duty service? PLEASE NOTE since VA does not consider hearing acuity at 6,000 Hertz in determining whether a hearing loss disability is shown, the examiner cannot base an opinion on a conclusion the Veteran had pre-existing right ear hearing loss. 2) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s claimed tinnitus is caused by or otherwise etiologically related to his active duty service? 3) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s claimed tinnitus is proximately due to, the result of, or aggravated by his right ear hearing loss? The examiner must provide a complete rationale for any opinion expressed that is based on the examiner’s clinical experience, medical expertise, and established medical principles. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Galante, Associate Counsel