Citation Nr: 20030176 Decision Date: 04/29/20 Archive Date: 04/29/20 DOCKET NO. 14-17 497 DATE: April 29, 2020 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT The Veteran's preexisting hearing loss was aggravated beyond its normal progression during service. CONCLUSION OF LAW The Veteran's pre-existing bilateral hearing loss disability was aggravated during service. 38 U.S.C. §§ 1110, 1131, 1132, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 2006 to August 2008, to include service in Iraq. For his meritorious service, the Veteran was awarded the Combat Action Badge and the Army Commendation Medal, among other decorations. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in July 2009 by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board in February 2018 for additional evidentiary development. After remand, the Veteran’s claim for service connection for a bilateral knee disability was granted by the RO. Thus, the claim of service connection for a bilateral knee disability will not be addressed in this decision. The remaining claim of service connection for bilateral hearing loss is now before the Board for further appellate review. Entitlement to service connection for bilateral hearing loss Generally, to establish service connection there must be competent evidence showing: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the in-service injury incurred or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including bilateral hearing loss, to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309 (a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability 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 the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. 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). In Smith v. Shinseki, 24 Vet. App. 40, 45 (2010), it was clarified that the presumption applies when a veteran has been “examined, accepted, and enrolled for service,” and where that examination revealed no “defects, infirmities, or disorders.” 38 U.S.C. § 1111. Plainly, the statute requires that there be an examination prior to entry into the period of service on which the claim is based. See Crowe v. Brown, 7 Vet. App. 238, 245 (1994) (holding that the presumption of sound condition “attaches only where there has been an induction examination in which the later-complained-of disability was not detected” (citing Bagby, 1 Vet. App. at 227). Only such conditions as are recorded in examination reports are considered as noted. 38 C.F.R. § 3.304(b). History of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304(b)(1). If a pre-existing disability is noted upon entry into service, then the veteran cannot bring a claim for service connection for that disability, only a claim for service-connected aggravation of that disability. In that case, 38 U.S.C. § 1153 applies and the burden falls on him or her, not VA, to establish aggravation. Wagner, 370 F.3d at 1096; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994); 38 C.F.R. § 3.306. A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is 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. 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. Id.; Falzone v. Brown, 8 Vet. App. 398, 402 (1995). 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran first entered service with a hearing disability for VA purposes as evidenced by his entrance examination; that examination showed that the Veteran had hearing loss for VA purposes, as both his right and left ears at 4,000 Hertz had pure tone threshold losses of 60. The presumption of soundness does not attach for the Veteran’s hearing. That said, the record is replete with evidence that the Veteran’s hearing further deteriorated during his active, combat service. A VA audiological examination 7 months post-service reveals that the Veteran’s hearing loss was much worse than reflected at the time of his entrance; his hearing had deteriorated bilaterally at 4,000 Hertz, even from the point of his entrance examination, and he had pure tone threshold losses of 45 and 40 in his right and left ears at 3,000 Hertz, both also increased from the Veteran’s entrance examination. After the initial February 2018 Board remand, the Veteran underwent a December 2018 VA examination to determine if he hearing loss was aggravated during service beyond its normal progression. The examining physician opined that the Veteran’s hearing loss was not aggravated by his military service. The examiner explained that the Veteran did not have documentation of a significant threshold shift until 7 months after his separation from service, thus, this change was unrelated to his military service. The Board finds this examination to be inadequate for determining if the Veteran’s hearing loss was aggravated by service beyond its normal progression. The examining physician did not provide medical reasoning for determining that the threshold shift was unrelated to service. Additionally, the examiner did not explain the decline in the Veteran’s hearing which was documented by his STRs and post-service audiological examination. Additionally, the Veteran reported combat action while in service and the examining physician did not detail the affect the hazardous noise exposure could have on the Veteran’s hearing. Thus, this medical opinion holds no probative weight in determining whether aggravation is present. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran’s military service aggravated his disability beyond its normal progression. There is documentation of the Veteran’s hearing worsening during his military service. He was exposed to hazardous noise while in service and had a significant threshold shift noted 7 months after his separation from service. Although there is no separation examination of record, the March 2009 audiological exam is within the one year presumptive period. Thus, this threshold shift is presumed to be attributable to his military service. Accordingly, the Board finds that service connection for the Veteran’s bilateral hearing loss is warranted. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. K. Hall, Associate Counsel 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.