Citation Nr: 18119652 Decision Date: 07/19/18 Archive Date: 07/18/18 DOCKET NO. 10-07 948 DATE: July 19, 2018 ORDER Service connection for left ear hearing loss is granted. FINDING OF FACT 1. The Veteran’s left ear hearing loss was noted at the time of entry into service. 2. The evidence of record is sufficient to raise the presumption of aggravation, but does not clearly and unmistakably show that the Veteran’s pre-existing left ear hearing loss was not aggravated by an in-service injury or as a result of any incident in service. CONCLUSION OF LAW The criteria for service connection for left ear hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1979 to April 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303 (b), Walker v. Shinseki, 708 F.3d 1331. (Fed. Cir. 2013). Specific to claims for service connection for hearing loss, 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 threshold for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC test are less than 94 percent. 38 C.F.R. § 3.385 (2016). When there is no diagnosis of hearing loss in service, the absence of documented hearing loss in service is not fatal to a service connection claim for such disability, especially if service records indicate a significant in-service threshold shift. Ledford v. Derwinski, 3 Vet. App. 87 (1992); Hensley v. Brown, 5 Vet. App. 155 (1993). Establishing service connection is possible if the current hearing loss can be adequately linked to service. Ledford, 3 Vet. App.at 89. Additionally, other organic diseases of the nervous system, which may include sensorineural hearing, are classified as “chronic diseases” under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303 (b) also applies. 38 C.F.R. § 3.307; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015) (including tinnitus as an organic disease of the nervous system). Presumptive service connection for “chronic diseases” must be considered on three bases: chronicity during service, continuity of symptomatology since service, and manifestations within one year of the veteran’s separation from service. Walker, 708 F.3d at 1338. 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; 38 C.F.R. § 3.304(b). To rebut the presumption of sound condition under 38 U.S.C. § 1111, VA 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. 38 C.F.R. § 3.304(b); VAOPGCPREC 3-03, 69 Fed. Reg. 25,178 (2004); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999). It is an onerous evidentiary standard, requiring that the no-aggravation result be undebatable. Cotant, 17 Vet. App. at 131. A pre-existing injury or disease will be considered to have been aggravated by active 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. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Temporary or intermittent flare-ups of symptoms of a preexisting condition, alone, do not constitute sufficient evidence for a non-combat veteran to show increased disability for the purposes of determinations of service connection based on aggravation under section 1153 unless the underlying condition worsened. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). If an increase in disability is shown during service, clear and unmistakable evidence is required to rebut the presumption of aggravation. 38 C.F.R. § 3.306 (b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Left Ear Hearing Loss At the Veteran’s entrance examination in August 1979, the Veteran received an audiogram and pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 10 10 - 10 LEFT 60 70 40 - 30 His ears were noted as normal and there was no indication of any hearing disabilities. The examination was noted as normal and the Veteran was qualified for enlistment. During the Veteran’s March 1980 separation examination, the Veteran received an audiogram and pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 15 15 LEFT 80 70 70 65 65 The examiner noted that the Veteran had left ear hearing loss. The Veteran was afforded a VA audio examination in November 2008 and the examiner noted that there was no measurable hearing in the left ear. As a result of the examination, the examiner diagnosed profound sensorineural hearing loss in the left ear. He then opined that, based on the test results and the demonstrable shift during service, the Veteran’s hearing loss was as least as likely as not caused by or a result of an in-service event. The Veteran received another VA audio examination in March 2009 and the examiner indicated that the induction audiogram noted a pre-existing, congenital, moderately severe to severe hearing loss in the left ear. Audiograms performed in 1980, including the separation audiogram, showed significant changes in hearing thresholds above 1000 Hz in the left ear greater than would be expected due to normal variability. Based on the Veteran’s records, the examiner opined that the changes in hearing thresholds were more likely due to the progression of congenital ear disease of unknown etiology, and was less likely as not that noise exposure accounted for the observed changes since there were no permanent changes in hearing thresholds in the right ear. The Board notes that the Veteran was not diagnosed with left ear hearing loss at his August 1979 entrance examination. However, his entrance audiogram shows left ear hearing loss sufficient for VA purposes, as the auditory threshold is 40 decibels or greater in at least one of the frequencies. As such, the Board will concede that hearing loss was noted at entry. Since the Veteran’s left ear hearing loss was noted at his entrance to service, the presumption of soundness does not apply. The separation audiogram indicates that the Veteran’s left ear hearing loss worsened, as there was an increase in the thresholds in virtually all of the decibel categories. Thus, the Board concludes that the presumption of aggravation applies. Most importantly, the Board finds that the March 2009 VA examiner’s conclusions do not rise to the level of “clear and unmistakable evidence” as is needed to overcome the high evidentiary burden needed to rebut the presumption of aggravation. The examiner concluded that it was “less likely as not” that noise exposure accounted for the observed changes since there were no permanent changes in hearing thresholds in the right ear. Furthermore, the competent, credible November 2008 VA examination linked the Veteran’s auditory shift during service to his time in service. Therefore, in light of the positive nexus opinion, and the lack of clear and unmistakable evidence to rebut the presumption of aggravation, the Board finds that service connection is warranted for left ear hearing loss. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Daniels, Associate Counsel