Citation Nr: 20052154 Decision Date: 08/06/20 Archive Date: 08/06/20 DOCKET NO. 15-37 335 DATE: August 6, 2020 ORDER The issue of entitlement to service connection for a hearing loss disability of the right ear is denied. FINDING OF FACT The evidence of record does not establish the Veteran’s pre-existing hearing loss disability of the right ear was aggravated beyond its natural progression by his active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for a hearing loss disability of the right ear have not been met. 38 U.S.C. §§ 1110, 1111 (2012); 38 C.F.R. §§ 3.303, 3.304 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1968 to January 1972, during the Vietnam Era. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a May 2014 rating decision by a Department of Veterans Appeals (VA) Regional Office (RO). In August 2018, the Board remanded this matter for further development; namely, to obtain a VA medical opinion with respect to the claim herein. 1. The issue of entitlement to service connection for a hearing loss disability of the right ear. The Veteran contends that he has a hearing loss disability of the right ear which stems from his service. More specifically, he asserts that even though he demonstrated “slight” hearing loss of the right ear at the time of his entry into service, it was greatly affected by the excessive and constant noise of bombs exploding, being at the firing range and Morse Code being transmitted loudly via headsets. See June 2014 Letter from the Veteran; August 2015 VA Form 9. Service connection may be established if the evidence demonstrates that a current disability resulted from a disease or injury incurred in or aggravated by active duty service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to prove service connection, there must be competent and credible evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). For VA compensation purposes, hearing impairment is considered a disability when: (1) the auditory threshold in any of the frequencies 500, 1000, 2000, 3000 or 4000 Hertz (Hz) is 40 decibels (dB) or greater; (2) the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000 or 4000 Hz are 26 dB or greater; or (3) the speech recognition scores using the Maryland CNC test are less than 94 percent. 38 C.F.R. § 3.385 (2019). A veteran is presumed 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.” 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). This presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff’d 749 F.3d 1370 (Fed. Cir. 2014). Pursuant to 38 C.F.R. § 3.304(b), only those conditions recorded in examination reports can be considered as “noted,” and a history of pre-service existence of conditions recorded at the time of examination does not constitute notation of such conditions. Here, a review of the Veteran’s service treatment records (STRs) reveals that at the time of his enlistment examination, audiometric testing produced the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 55 dB 45 dB 45 dB 85 dB 80 dB As the May 1968 Report of Medical Examination contained a notation the audiometric test results were reported using American Standards Association (ASA) units the above auditory thresholds have been converted to the presently applicable International Standards Organization (ISO) units. Further, in the corresponding May 1968 Report of Medical History, the examiner noted he has had a six-year history of recurrent right ear infections with drainage which has been attendant with dizziness for the past two years. Due to these results, the Veteran was referred for a follow up evaluation. See May 1968 Audio Tests; May 1968 Consultation Sheet. At that time, he reported a history of hearing loss in the right ear since childhood. He relayed that he was hospitalized because of a ruptured ear drum and since then he has had decreased hearing. In the end, the examiner confirmed he had mixed hearing loss in the right ear. Nevertheless, the examiner indicated he was fit for induction. Based on the above, the Board finds the Veteran’s pre-existing hearing loss disability of the right ear was sufficiently noted in an examination report at the time he was examined, accepted and enrolled for service. As such, the presumption of soundness does not attach, and service connection may only be granted on the basis of aggravation in service. In reaching this conclusion, the Board notes in his August 2015 VA Form 9, the Veteran claimed the reference to “right eardrum busted” among his medical records was an opinion voiced by his mother. In fact, he denied ever receiving treatment for such a condition. While he does not expressly refer to the above May 1968 Consultation Sheet, the only medical record in the claims file documenting a right ear drum problem is the May 1968 Consultation Sheet. The Board finds whether he had a right ear drum issue is inconsequential because it does not impact the Board’s determination of whether his hearing loss disability of the right ear preexisted his service but rather bears on its possible pre-service etiology. Moreover, the Veteran does not contest that he had a preexisting hearing loss disability of the right ear. A pre-existing injury or disease will be presumed to have been aggravated in service where there is an increase in disability during such service, unless there is a specific finding the increase in disability was due to the natural progression of the condition. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a); Hunt v. Derwinski, 1 Vet. App. 292 (1991). However, in order to avail themselves of this presumption of aggravation, initially, the burden is on the veteran to establish an increase in severity in service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). If the veteran is able to demonstrate an increase in severity in service, then the presumption of aggravation attaches and the burden shifts to VA to rebut the presumption by clear and unmistakable evidence that the worsening of the preexisting condition was due to its natural progression. Id.; see also 38 C.F.R. § 3.306(b). In that regard, “temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered ‘aggravation in service’ unless the underlying condition, as contrasted to symptoms, is worsened. See Hunt, 1 Vet. App. at 297. In view of the above, the next question for the Board is whether the Veteran has established an increase in severity in service of his preexisting hearing loss disability of the right ear. During his time in service, a review of the Veteran’s STRs discloses that he complained of ear pain on several occasions. A June 12, 1968 Chronological Record of Medical Care documented a diagnosis of serous otitis following his complaint of bilateral otalgia. Of note, this STR contained no mention of any hearing impairment accompanying the bilateral otalgia. One entry from June 1968 recorded the Veteran’s continued complaint of bilateral otalgia along with partial deafness. June 24, 1968 Chronological Records of Medical Care. A second entry from that same date logged his report of his ear hurting when he put his head down on his pillow at night. However, the treatment provider noted he was referring to pain about the ear and not down the ear canal towards his middle ear. In fact, an examination revealed his external ear was normal and, internally, the tympanic membrane was intact without any evidence of inflammation. Consequently, the examiner concluded no disease, injury or pathology was found. An in-service treatment record, possibly from December 1968, indicates an impression of upper respiratory infection following the Veteran’s complaint of an earache and headache. Unfortunately, this STR makes no reference to any hearing impairment attendant with the earache or his right ear specifically. There are no subsequent STR entries chronicling any further complaints associated with the Veteran’s hearing loss of the right ear or right ear related issues generally. Despite the above complaints, a November 1969 periodic examination included audiometric testing, which yielded the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 40 dB 30 dB 20 dB -- 20 dB While the auditory threshold at the 3000 Hz frequency was not reported, the Board notes the auditory thresholds at the 500, 1000, 2000 and 4000 Hz frequencies were appreciably improved when compared to the Veteran’s audiometric testing results at the time of his enlistment examination in May 1968. At the time of the Veteran’s January 1972 separation examination, audiometric testing produced the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 40 dB 30 dB 20 dB 65 dB 20 dB The Board notes that the results of the 3000 Hz testing were circled and “Not Valid” was handwritten next to the test results. The Board notes the Veteran’s auditory thresholds at the 500, 1000, 2000 and 4000 Hz frequencies remained the same as those following the November 1969 periodic examination. This time, the auditory threshold at the 3000 Hz frequency was included, which also showed a notable improvement from his enlistment examination in May 1968. However, as noted immediately above, the results from the test of this frequency were determined to be “not valid.” In the corresponding January 1972 Report of Medical History, the Veteran indicated having or having had hearing loss and the examiner affirmed his history of recurring ear infections and hearing loss. Additionally, the examiner documented his statement that he has been tested in the past and told that his hearing loss comes and goes. Of note, during his separation examination, he stated he noticed no problems with hearing loss at that time. In furtherance of this claim, the Veteran has been afforded one VA examination in April 2014. Audiometric testing at that time returned the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 25 dB 40 dB 35 dB 85 dB 70 dB These results confirmed he had a current hearing loss disability of the right ear and showed that his auditory thresholds were worse at each relevant Hz frequency for VA compensation purposes; 1000, 2000, 3000 and 4000 Hz frequencies. In the end, after reviewing the claims file, the VA examiner opined that it was less likely than not the Veteran’s hearing loss of the right ear was caused by, the result of or permanently aggravated by his noise exposure in service. The VA examiner explained that comparing the auditory thresholds at the time of his enlistment examination and separation examination, there was no evidence of a significant threshold shift at any frequency in the right ear. In an August 2018 decision, the Board found the April 2014 Hearing Loss and Tinnitus VA Examination Report was inadequate for adjudication purposes because the VA examiner used the incorrect preponderance of the evidence standard of proof, rather than the applicable clear and unmistakable evidence standard. Further, the Board found it was also inadequate for adjudication purposes because the VA examiner failed to consider the Veteran’s relevant lay statements regarding his noise exposure in service during combat training exercises while serving in Japan and Thailand during the Vietnam Era as well as the STRs logging his complaints of right ear pain on multiple occasions. As such, the Board remanded this matter as noted above. Pursuant to the Board’s August 2018 remand, a VA medical opinion was obtained in October 2019. Following a review of the record, the VA examiner opined it was less likely than not the Veteran’s hearing loss of the right ear as caused by, the result of or aggravated beyond its normal progression by his noise exposure in service. In doing so, the VA examiner determined he clearly had hearing loss of the right ear prior to his service. Even though the VA examiner acknowledged the STRs referenced above, the VA examiner explained that an audiogram is the objective standard for determining noise injury. In that regard, his auditory thresholds at the time of his enlistment examination and separation examination showed no significant auditory threshold shifts occurring in service. As such, there was no evidence establishing that his noise exposure in service caused permanent injury further affecting his hearing sensitivity. In rendering their opinion, it appears the August 2018 VA examiner did not strictly adhere to the clear and unmistakable evidence standard of proof when they found the Veteran “clearly” had hearing loss of the right ear and that it was “less likely than not” his hearing loss of the right ear as caused by, the result of or aggravated beyond its normal progression by his noise exposure in service. However, the Board finds a remand for an addendum VA medical opinion is unnecessary since the clear and unmistakable evidence standard was not applicable to find his hearing loss of the right ear preexisted service because, as the Board found above, it was sufficiently noted at the time of his enlistment examination. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (holding that unnecessary burdens should not be imposed on VA without a benefit flowing to the veteran). Thus, the Board may rely on the August 2018 VA examiner’s findings until such time the Veteran has met his initial burden. Considering the above, the Board finds the Veteran has not established an in-service increase in severity of his preexisting hearing loss disability of the right ear. The Veteran’s statement that he has been told his hearing loss comes and goes at the time of his separation examination is not inconsistent with the STRs demonstrating an improvement in his hearing impairment following entry into service. However, notwithstanding any fluctuation in his hearing impairment in service, there is no evidence, lay or medical, suggesting an increase in severity of his hearing loss of the right ear beyond that which he began service with. At best, his complaints described temporary or intermittent flare-ups in service, which is insufficient to be considered aggravation in service. See Hunt, 1 Vet. App. at 297. Although the Veteran relayed experiencing ear pain on three separate occasions in service, only once did he reference any associated impairment of hearing. On the single occasion he averred experiencing deafness along with ear pain, he did not provide any information suggesting his hearing impairment was greater than that at the time of his enlistment. Most significantly, contrary to the Veteran’s post-service claim that his hearing loss of the right ear increased in severity in service, the November 1969 and January 1972 audiometric tests demonstrate that his hearing impairment of the right ear actually improved following the May 1968 audiometric testing at the time of his enlistment examination despite any temporary or intermittent flare-ups he may have experienced in service. In reaching this conclusion, the Board acknowledges the Veteran is competent to provide evidence regarding the lay observable symptoms associated with his hearing loss disability of the right ear. See Layno v. Brown, 6 Vet. App. 465 469-70 (1994). However, as audiometric testing conducted by a state-licensed audiologist is required to evaluate the severity of his hearing impairment for VA compensation purposes and there is no evidence of record establishing that he is a state-licensed audiologist, his is not competent to provide evidence regarding the severity of his hearing loss in terms of puretone thresholds and speech discrimination percentage. Id. For this reason, the Board attaches greater probative weight to the August 2018 VA examiner’s evaluation of the evidence the evidence of record in this regard. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Even though the August 2018 VA examiner seems to have accepted the fact the Veteran was exposed to noise in service, the VA examiner found there was no evidence establishing it caused permanent injury further affecting his hearing sensitivity based on a comparison of the audiometric testing results from his enlistment and separation examinations. As another matter, the Board finds the Veteran’s claim that his preexisting hearing loss of the right ear was aggravated by his exposure to noise in service more than 40 years post-separation from service is less reliable given the significant passage of time than his statements in service and the contemporaneous objective findings made by the treatment providers and examiners in service which are not consistent with his present claim. See Madden, supra; see also Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d. 604 (Fed. Cir. 1996). Based on the above, the Board finds the presumption of aggravation does not attach. As such, the burden does not shift to VA to rebut the presumption of aggravation with clear and unmistakable evidence. Accordingly, service connection due to aggravation of the Veteran’s preexisting bilateral hearing loss of the right ear must be denied. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Suh, 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.