Citation Nr: 20004476 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 17-57 235 DATE: January 21, 2020 ORDER Entitlement to service connection for right ear hearing loss is granted. REMANDED Entitlement to a compensable disability rating for service-connected left ear hearing loss is remanded. FINDING OF FACT The preponderance of the evidence shows that the Veteran’s right ear hearing loss was caused or aggravated by noise exposure during his active duty service. CONCLUSION OF LAW The criteria for service connection for right ear hearing loss have been met. 38 U.S.C. § 1110, 5107; 38 C.F.R. § 3.102, 3.303, 3.307, 3.309, 3.385 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1967 to June 1970. Service Connection – Right Ear Hearing Loss The Veteran contends that his right ear hearing loss is related to his active service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence must show: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases, to include organic diseases of the central nervous system such as sensorineural hearing loss and tinnitus, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). The analyses below focus on the most salient and relevant evidence and on what this evidence shows or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein. Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board provide reasons for rejecting evidence favorable to the Veteran. Service medical records show that, upon entrance into active service in 1966, the Veteran’s right ear showed a puretone threshold of 40dB at 4000Hz. According to his entrance examination, his right ear puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 0 / 40 LEFT 5 -5 0 / 5 At the Veteran’s separation examination, his puretone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 0 10 50 LEFT 10 5 5 / 20 In a May 2015 private audiological assessment, Dr. A.D. remarked that the Veteran’s hearing loss was more likely than not the result of his exposure to noise levels on active duty without adequate hearing protection. On VA examination in August 2015, the Veteran’s puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 25 60 85 LEFT 10 10 25 50 75 The right ear had a score of 94 percent for speech discrimination with the Maryland CNC word test and the left ear had a score of 96 percent. While the Veteran was diagnosed with sensorineural hearing loss in both ears, the examiner opined that the Veteran’s right ear hearing loss was not caused or aggravated by his active service, based on his in-service thresholds and a lack of significant shift during service. Also, the examiner opined that the Veteran’s left ear hearing loss was the result of hazardous noise exposure during active service based on his threshold shift from his entrance examination to his separation examination during active service and the fact that he was combat Veteran in Vietnam who did not have adequate hearing protection during that exposure. Specifically, the examiner stated that there was a moderate hearing loss at 4000Hz in the right ear at induction and separation with no significant threshold shift occurring. Hearing loss did not occur in the Army in the right ear. Thresholds of 45dB at induction and 50dB at separation were reported at 4000Hz. This is not aggravation beyond normal progression. The examiner did not explain what was considered a “significant shift,” or why a shift of 10 decibels at two separate frequencies in the right ear was not considered significant, while a shift of 15 decibels at one frequency in the left ear was considered significant. In fact, the examiner only discussed the Veteran’s thresholds in the right ear at 4000Hz and not any other frequency or shift. The examiner explained that the May 2015 examination was not reliable because that examiner did not have the benefit of the service medical records showing a higher threshold for the right ear upon entrance to active duty. The Board notes that additional laws and regulations apply when there is evidence that a disability preexisted service. A veteran is presumed to be in sound condition when entering service except for conditions “noted” on entrance or where clear and unmistakable evidence demonstrates that an injury or disease preexisted service, and that the disease or injury was not aggravated by service. 38 U.S.C. § 1132; 38 C.F.R. § 3.304 (b); Cotant v. Principi, 17 Vet. App. 116 (2003); VAOPGCPREC 3-2003 (2003). Only such conditions as are recorded in entrance examination reports are considered to be “noted” for purposes of the presumption of soundness. 38 C.F.R. § 3.304 (b). When a preexisting disability is not “noted” prior to entry, the VA has the burden to demonstrate, by clear and unmistakable evidence, both that the disorder at issue pre-existed service and that it was not aggravated by service. See VAOPGCPREC 3-2003 (July 2003); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). If the disability is shown to be preexisting, it will be presumed to have been aggravated by service where there was an increase in disability during service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progression of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; see also Horn v. Shinseki, 25 Vet. App. 231, 238 (2012). Here, in-service noise exposure has been conceded, as the Veteran’s left ear hearing loss has been service connected, and the evidence above shows the Veteran has right ear hearing loss for VA purposes. The August 2015 VA examiner opined that the Veteran’s right ear hearing loss pre-existed his service and was not aggravated by service. The Board finds, however, that, while one higher threshold was measured on the Veteran’s entrance medical examination, there was no further “note” of deficient hearing ability by the reviewing physician on the report. Further, that the examiner found the threshold shifts during the Veteran’s service not to be “significant” is not equivalent under the law to show with clear and unmistakable evidence that his hearing did not worsen during his active service. Clearly, almost all the thresholds measured, as shown above, had increased during the Veteran’s active duty. Additionally, the August 2015 examiner’s opinion that the noise exposure during service caused the Veteran’s left ear hearing loss but not his right ear hearing loss is inadequate without an explanation as to why one ear had worsened due to noise exposure. Noting only natural progressive worsening in the other (or right) ear is not sufficient. As such, the Board finds that the Veteran’s right ear hearing loss was not “noted” upon his induction. In other words, the Board finds that the Veteran’s right ear hearing loss did not pre-exist his service and that he is, therefore, presumed sound upon his entrance to active duty. The Board also finds that, even if the Veteran did have right ear hearing loss that preexisted his active service, the evidence is not clear and unmistakable that his hearing loss was not aggravated by service. Considered with the positive private medical opinion of record, the Board finds that, despite the negative VA medical opinion, the preponderance of the evidence shows that the Veteran’s right ear hearing loss was caused by his active duty noise exposure. Therefore, service connection for right ear hearing loss is warranted. REASONS FOR REMAND Entitlement to a compensable disability rating for service-connected left ear hearing loss The Veteran’s claim for service connection for right ear hearing loss has been granted herein. Therefore, the Board finds that a remand is necessary to accord the AOJ an opportunity to determine accurately the current severity of the Veteran’s bilateral hearing loss and, in doing so, to readjudicate his claim for a compensable rating for hearing loss, which will now be calculated bilaterally. 38 C.F.R. § 4.85. Accordingly, the issue of an initial compensable rating for bilateral hearing loss is REMANDED for the following action: Schedule the Veteran for a new VA audiological examination to determine the current severity of his now service-connected bilateral hearing loss. Any and all studies, tests, and evaluations deemed necessary by the examiner, including the Maryland CNC test and a pure tone audiometry test, should be performed. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Lee The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.