Citation Nr: 18158859 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 18-02 162 DATE: December 18, 2018 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran’s bilateral hearing loss began during active service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1971 to May 1973. This matter comes before the Board of Veterans’ Appeals (Board) from a February 2016 rating decision. Entitlement to service connection for bilateral hearing loss Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Hearing loss is considered to be a disability for VA purposes 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 these frequencies are 26 decibels or greater; or when speech recognition thresholds using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Moreover, every veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). The term “noted,” in 38 U.S.C. § 1111, refers to “[o]nly such conditions as are recorded in examination reports.” 38 C.F.R. § 3.304 (b). In order to rebut the presumption of sound condition under 38 U.S.C. § 1111, the government must show by clear and unmistakable evidence both that the disease or injury existed prior to service, and that the disease or injury was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). To satisfy the second requirement for rebutting the presumption of soundness, the government must rebut a statutory presumption of aggravation by showing, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was “due to the natural progression” of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). The clear and unmistakable evidentiary standard applies to the burden to rebut the presumption, but this standard does not require the absence of conflicting evidence. Kent v. Principi, 389 F.3d 1380, 1383 (Fed. Cir. 2004). If the presumption of soundness is not rebutted, the claim is treated as an ordinary claim of service connection, meaning that if service connection is established there is no deduction for any pre-existing portion of the disability. Wagner, 370 F. 3d at 1089. In the present case, the Veteran contends that he has current bilateral hearing loss caused by exposure to loud noise in service. The Board concludes, for the following reasons, that the Veteran has a current diagnosis of bilateral hearing loss and that the evidence is at least evenly balanced as to whether the hearing loss had its onset in service. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). The report of the Veteran’s January 1971 entrance examination indicates that there were no abnormalities at the time he was examined, accepted, and enrolled for service other than for scars. As no hearing defect was noted at entry into service, the Veteran is entitled to the presumption of soundness and the Board must consider whether that presumption is rebutted by clear and unmistakable evidence. Service treatment records reflect that in April 1971, prior to his May 1971 entrance into active service, the Veteran was evaluated for a history of dizziness, tinnitus, and ear pain. Audiological testing was conducted and revealed that his pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 35 35 40 40 LEFT 25 25 20 20 15 In light of this evidence, the Board concludes that there is clear and unmistakable evidence of right ear hearing loss as defined by VA that existed prior to the Veteran’s period of active service from May 1971 to May 1973. As for the left ear, there is no clear and unmistakable evidence of any pre-existing left ear hearing loss. The remaining question with regard to the presumption of soundness is whether his right ear hearing loss was clearly and unmistakably not aggravated during service. See 38 U.S.C. § 1111. The Veteran has reported that he was exposed to loud noise in service associated with military weaponry. Specifically, he has reported that his bunk on his assigned ship during service was located right under the ship’s turrets and that he was frequently exposed to the noise from the ship’s guns without the use of hearing protection. He has also reported that has experienced hearing symptoms since his separation from service. During his April 1973 separation examination, his pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 10 0 0 0 LEFT 0 0 0 0 0 The audiologist who conducted a February 2016 VA audiological examination opined that she was unable to determine the etiology of the Veteran’s hearing loss without resorting to speculation. She explained, in pertinent part, that during service the Veteran’s bunk was under the turrets of his ship and he was frequently exposed to big guns being fired and other weapons without the use of hearing protection. Also, he had frequent ear infections in childhood and was exposed to noise from tools while working in construction after service. During his January 1971 entrance examination, only a whispered voice test was completed and this is not a reliable indicator of the presence or absence of hearing loss. In April 1971, his hearing was tested twice, with very different results. The first test showed mild hearing loss in the right ear from 250 hertz to 8 kilohertz (thresholds 35 to 40 decibels across the range), hearing at the upper limits of normal in the left ear from 250 hertz to 4 kilohertz (thresholds 20 to 25 decibels), and moderately severe hearing loss at 8 kilohertz in the left ear. The second test was on the right ear only and showed completely normal hearing from 150 hertz to 4 kilohertz, with 8 kilohertz not tested. The left ear was not tested a second time and 6 kilohertz was not tested in either ear on either test. During the Veteran’s April 1973 separation examination, audiology testing showed normal hearing from 500 hertz to 4 kilohertz, with a mild hearing loss at 6 kilohertz in the right ear and moderately severe hearing loss at 6 kilohertz in the left ear. The examiner further reasoned that the September 2005 Institute of Medicine report on noise exposure in the military concluded that based on current knowledge, noise induced hearing loss occurs immediately. In other words, there is no scientific support for delayed onset noise induced hearing loss weeks, months, or years after the exposure event. If documentation of the existence of hearing loss at discharge from service is missing, it is nearly impossible to determine whether hearing loss later in life is the result of noise exposure during prior military service. Since there was no enlistment examination, service audiograms were inconsistent, and an audiogram done early in service showed high frequency hearing loss in both ears, the examiner was unable to determine without speculation whether the hearing loss shown at 6 kilohertz at the time of separation represented a threshold shift during service, or whether the hearing loss at 6 kilohertz pre-existed service. Also, the examiner could not determine without speculation whether any portion of the current hearing loss began as a result of military noise exposure or was due to other factors (including the aging process or occupational noise exposure). The Veteran’s hearing loss was mixed in nature (i.e., there was a conductive component), and conductive hearing loss is not likely (“less likely as not”) due to military noise exposure because noise exposure does not typically cause conductive hearing loss. The February 2016 opinion is adequate to the extent that it is accompanied by a specific rationale addressing why a definitive conclusion as to the etiology of the Veteran’s hearing loss could not be made. See Jones v. Shinseki, 23 Vet. App. 382 (2010). Nevertheless, the examiner stated that an opinion could not be provided without resort to speculation and this statement weighs neither for nor against the claim. Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). The Board points out that there is no specific opinion pertaining to whether the pre-existing right ear hearing loss (as documented in the April 1971 service treatment record) was aggravated during the period of active service from May 1971 to May 1973. Additionally, the Veteran is competent to report noise exposure and hearing symptoms during his period of active service as well as the continuance of such symptoms in the years since service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Further, his DD Form 214 confirms that he served aboard the USS Shreveport and USS Richmond in service. The Board acknowledges that the Veteran has provided some information which is inconsistent with a continuity of hearing loss symptomatology in the years since service. For instance, he reported on a September 1973 report of medical history form that he was neither experiencing, nor had he ever experienced, any hearing loss. Nevertheless, the Veteran’s September 1973 report is itself inaccurate because, as noted above, there is documentation of treatment for earlier hearing symptoms in April 1971. As there no other evidence that explicitly contradicts the Veteran’s reports and his reports are otherwise generally consistent with the evidence of record and the circumstances of his service, the Board concludes that his reports of in-service noise exposure, hearing symptoms in service, and continuing hearing symptoms in the years since service are credible. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.303 (a) (each disabling condition for which a veteran seeks service connection must be considered on the basis of the places, types, and circumstances of his service, as shown by the evidence). In sum, based upon the clinical evidence contained in the Veteran’s service treatment records, the post-service treatment records, and the Veteran’s competent and credible reports of a continuity of hearing loss symptomatology in the years since service, and resolving reasonable doubt in his favor, the Board finds that the evidence is not clear and unmistakable that there was no aggravation of his pre-existing right ear hearing loss during service. As such, the presumption of soundness is not rebutted with respect to either ear. Turning to the elements of a service connection claim, the February 2016 VA audiological examination report shows that the Veteran has a current diagnosis of bilateral hearing loss as defined by VA. See 38 C.F.R. § 3.385. Also, the evidence reflects that he experienced acoustic trauma and hearing symptoms in service and that there have been continuous hearing symptoms in the years since service. There is no medical opinion contrary to a conclusion that the current hearing loss had its onset in service. Hence, the Board finds that the evidence is at least evenly balanced as to whether the evidence indicates that the current bilateral hearing loss had its onset in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for the currently diagnosed bilateral hearing loss is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. See also Buchanan, 451 F.3d at 1335 (“[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself”). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Elwood, Counsel