Citation Nr: 20037589 Decision Date: 06/02/20 Archive Date: 06/02/20 DOCKET NO. 18-15 595 DATE: June 2, 2020 ORDER Entitlement to service connection for left ear hearing loss is denied. FINDINGS OF FACT 1. The Veteran’s left ear hearing loss disability was noted at entrance to service. 2. The Veteran’s left ear hearing loss disability did not permanently increase in severity during service. 3. The Veteran’s left ear hearing loss disability did not worsen to a compensable level within one year of service separation 4. The Veteran’s left hearing loss disability is not related to noise exposure during service. CONCLUSION OF LAW The criteria for entitlement to service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 101, 1101, 1110, 1111, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.385 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran has service on active duty for training (ACDUTRA) in the United States Army Reserve from December 1969 to April 1970. This matter returns to the Board of Veterans’ Appeals (Board) after a June 2019 remand for additional development related to the appeal of a March 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) which is the agency of original jurisdiction (AOJ). 1. Entitlement to service-connected aggravation of a pre-existing condition for left ear hearing loss. The Veteran contends that his left ear hearing loss was caused by or was aggravated beyond its natural progression during or by his military service. The Veteran has been awarded service connection for tinnitus and right ear as incurred in his period of ACDUTRA. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Audiometric testing demonstrates that the Veteran has a hearing loss disability in his left ear. See, e.g., January 2020 VA examination report. The current disability element has been met. The controversy in this case centers on the in-service incurrence or aggravation element of the claim. The Board will consider the presumptions of soundness, aggravation, and chronic diseases before turning to consider direct service connection.   A. Presumption of Soundness The Veteran’s service treatment records (STRs) contain a copy of the Veteran’s enlistment physical from June 1969, an undated audiogram test results card (which appears to correlate to the entrance exam scores). These documents do not indicate American Standard Association (ASA) or International Standards Organization-American National Standards Institute (ISO-ANSI) units were used. The Board will consider both and rely on the unit measurements most favorable to the Veteran. Audiometric data originally recorded using ASA standards will be converted to ISO-ANSI standard by adding between 5 and 15 decibels to the recorded data. Conversion to ISO units is accomplished by adding decibels to the ASA units as described: Hertz 500 1000 2000 3000 4000 add dB 15 10 10 10 5 Utilizing the above, the Veteran’s June 1969 entrance physical audiological test results for his left ear, respectively, are as follows: Hertz 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz 6000 Hz Recorded +5 dB 0 dB -25 dB -35 dB -40 dB ?? Converted 10 dB 10 dB 35 dB 45 dB 45 dB ?? Note: The recorded score as plus and/or minus indicates a score better (+) than standard hearing level – 0 dB, or worse (-) than standard hearing, which is a hearing loss. Converted scores are indications of the level of hearing loss, and no (-) symbol is inserted. Regardless of whether the original scores were in ASA or ISO units, the Veteran had at least one threshold score of 40 dB at the 4,000Hz level, a disability for VA purposes. 38 C.F.R. § 3.385. Accordingly, the Veteran had a hearing loss disability noted at entry to service. McKinney v. McDonald, 28 Vet. App. 15, 29 (2016). If a preexisting disorder is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disorder, but the Veteran may bring a claim for service-connected aggravation of that disorder. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). At separation from service in April 1970, the Veteran underwent a second audiometric test. Left ear findings were entered that do not show the presence of a hearing loss disability. Hertz 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Recorded 0 dB 0 dB 0 dB 0 dB 20 dB Converted 15 dB 10 dB 10 dB 10 dB 25 dB The Board remanded this matter for a medical opinion in June 2019 in part for a medical opinion as to whether the Veteran indeed had a left ear hearing loss disability noted at entrance to service. In a January 2020 medical opinion, the examiner explained that, although there are many factors that could have played a role in the enlistment audiogram indicating hearing loss, she could not comment on the reliably of an enlistment physical that occurred more than 50 years prior without resorting to speculation. The listed factors including faulty equipment during the exam, excessive wax in the auditory canal, misunderstanding the test procedure or ambient noise in the test environment. The Veteran did not challenge the reliability of these in-service examinations and the record does not contain evidence to the contrary. The Board finds this explanation sufficient as notations regarding these factors was not recorded and the Board cannot see a plausible way in which they could be reconstructed. Based on review of the entire record, the Board finds that the Veteran’s left ear hearing loss disability was noted on his entrance physical. Accordingly, the presumption of soundness does not attach. The Board turns to consider in-service aggravation. See Wagner, supra. B. Presumption of Aggravation To establish in-service aggravation of a preexisting disability, a veteran need only submit evidence that helps establish that there is an increase in disability during such service. 38 U.S.C. § 1153. If a veteran submits documentation that, together with the rest of the record, evidences both the baseline severity of the preexisting condition prior to the period of service and a permanent increase in disability during a period of ACDUTRA, the claimant may take advantage of the presumption of aggravation. Hill v. McDonald, 28 Vet. App. 243, 246 (2016). The Veteran’s DD Form 214 reflects that his military occupation specialty (MOS) was a cook. His personal statements attested to loud noise exposure in service, including his January 2017 Statement in Support of Claim, VA Form 21-4138, in which he indicated having been exposed to loud noise from weapons fire during training, without hearing protection, and after which he experienced severe pain and constant ringing in both ears. The Board finds the Veteran’s statements in this regard are competent, credible, and consistent with the places, types, and circumstances of his service. See 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a). The Board notes that the Veteran has been separately awarded service connection for tinnitus. Pain is not a component of his present hearing loss disability. The Veteran did not allege a worsening in symptoms during service based on his personal knowledge. His STRs also do not reference worsening symptoms in service. The Veteran did submit two medical articles in support of his claim. The articles assert that it is generally accepted that after overexposure to noise, noise-induced hearing loss (NIHL) recovers to a temporary threshold shift or stabilizes at a permanent threshold shift with ear hair cell damage. However, the articles postulate noise-induced loss of spiral ganglion cells (SGCs), which are the cell bodies of the cochlear afferent neurons contacting the hair cells, and causes of neural degeneration, is delayed and can progress for years. The Veteran’s representative argued that “sometimes” when there is a threshold shift and then that shift reverses and a ‘normal’ hearing evaluation the reversal is merely a masking an actual more severe hearing loss due to injury to the cochlea, which is much slower in manifesting hearing loss. See, Attorney Brief, April 22, 2019. The Veteran did not submit any medical evidence that the conditions suggested in the articles actually applied to him. Additionally, neither the Veteran nor his representative provided an explanation how this theory applies when the Veteran’s pre-existing left ear hearing loss was noted in his June 1969 entrance physical, while he did not actually enter service until December 1969, only after which did he go through basic training where he was exposed to his in-service high levels of noise exposure from his training. There was also not showing how the article’s theory that hearing loss is shown at a short delayed or slower development rate due to neural damage, yet the Veteran’s separation physical showed actual improvement in his hearing. The Board finds these articles to be not relevant and of no probative value. In light of the foregoing, the Veteran has not supported his claim with evidence, lay or medical, of a permanent increase in disability during service. As such, the presumption of aggravation does not attach. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). C. Presumption for Chronic Diseases Certain diseases such as organic diseases of the nervous system, including sensorineural hearing loss, are entitled to presumptive service connection. See 38 U.S.C. §§ 1101, 1110; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.309(a). The presumption consists of three parts, chronicity in service, continuity of symptomatology from service to the present, and manifestation to a compensable degree within one year of service separation. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.307(a). For a disability noted at entrance, the chronicity in service and continuity of symptomatology prongs are not available as the notation on the entrance examination is proof to the contrary. See 38 U.S.C. § 1113(a). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, organic diseases of the nervous system, including sensorineural hearing loss, are presumed to have been incurred in service if they manifested to a compensable degree (10 percent rating criteria met) within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. This presumption applies to those disabilities noted at entrance to service and not aggravated therein. Splane v. West, 216 F.3d 1058, 1069 (Fed. Cir. 2000). A compensable rating for left ear hearing loss requires audiometric testing results, such as those discussed above, with, in most cases, speech recognition testing. See 38 C.F.R. §§ 4.85, 4.86 (2019). There are no audiometric results dated to year after the Veteran’s separation from service, the earliest dating to February 2008. The evidence of record does not retrospectively establish manifestations to that degree in the one-year post-service period. The Board concludes that service connection is not warranted on this basis. Having exhausted the presumptions available, the Board considers direct service connection next. See Shedden, supra. D. Direct Service Connection As noted, the Veteran has a current left ear hearing loss disability and has been awarded service connection for right ear hearing loss due to acoustic trauma during his ACDUTRA period. The remaining question is whether the Veteran’s left ear hearing loss was aggravated by the acoustic trauma. See Shedden, supra. The Veteran did not provide any evidence based on his personal knowledge apart from that convened to VA examiners. His claim, notice of disagreement, and substantive appeal do not contain lay statements. He has not reported that any medical expert has related to increased hearing loss to his in-service noise exposure. At best, he submitted the medical treatise articles discussed above that the Board has already found lacking in probative value. The remaining medical evidence weighs against the claim. Private post-service hearing related records from E.C. dated between 2008 and 2015 do not reference earlier treatment for the Veteran, and none contain any narrative history related to or etiological opinions related to the cause of the Veteran’s hearing loss. The Veteran was provided a VA audiological examination in March 2016, from which the VA examiner found that the Veteran’s left ear hearing loss existed prior to his entry into service and that this hearing loss was not aggravated beyond its normal progression during his military service. The VA examiner based this on the fact that a mild hearing loss was recorded in the enlistment examination and that the Veteran’s hearing thresholds were within normal limits at his separation which suggested that a permanent positive threshold shift did not occur during his period of service. On appeal, in June 2019, the Board remanded the matter for further development on three issues. The first was to determine if the Veteran had a left ear hearing loss condition for VA purposes at the time of his entrance into active service, and in doing so, the examiner was asked to specifically comment on the reliability of the entrance audiogram results in light of the Veteran’s separation examination audiogram results showing left ear hearing to have improved during service. Second, if the Veteran was found to have left ear hearing loss at the time of his entry into active service, the examiner was asked to opine on whether that disability was clearly and unmistakably not aggravated beyond the natural progression by such service. Finally, if the Veteran was not found to have left ear hearing loss at the time of his entry into active service (in that the entrance audiogram results are deemed unreliable), the examiner was asked to opine on whether his left ear hearing loss disability is etiologically related to acoustic trauma sustained in active service. In furtherance of this remand, the Veteran was afforded another VA audiological examination in January 2020. The VA examiner opined that it was less likely than not (less than 50 percent) that the Veteran’s left ear hearing loss was caused by or is a result of an event during his military service. The examiner based this on several facts, including that even though in-service noise exposure was conceded, the Veteran’s enlistment audiogram noted hearing loss in the left ear at the 3000 Hz, 4000 Hz, and 6000 Hz ranges, the etiology of which was not determined at that time, and that his separation examination hearing thresholds were within normal ranges. Further, the examiner relied on the facts that there is lack of evidence in the Veteran’s military record of complaints of hearing loss during service, and the time between his separation form service and the date the he initially sought treatment for hearing loss was 38 years later. Additionally, the examiner noted the Veteran’s statement he drove a truck requiring a class B license for 16 years after service. Therefore, she concluded, it cannot be determined if the claimed condition is a result of an in-service injury, event, or illness, or due to other facts including occupational noise exposure as a truck driver for 16 years. The VA examiner also found that the Veteran’s left ear hearing loss condition did, clearly and unmistakably exist prior to his entry into service and that this condition was not clearly aggravated beyond its natural progression by an in-service injury, event, or illness. The Board finds that the preponderance of the credible and competent evidence goes to the determination that the Veteran’s left ear hearing loss existed prior to his entry into military service, that this condition was noted on his entrance examination, that the condition was not aggravated beyond it natural progression during or as a result of his service. Absent a relative balance of the evidence for and against the claim, the evidence is not in equipoise and the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the claim is denied. J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Bannach, 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.