Citation Nr: 21000047 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 15-21 053 DATE: January 4, 2021 ORDER Service connection for left ear hearing loss is denied. FINDING OF FACT 1. The Veteran’s left ear hearing loss pre-existed his military service. 2. Left ear hearing loss is not shown to be causally or etiologically related to any disease, injury, or incident during service, and left ear hearing loss is not shown to be aggravated by the Veteran’s military service or any service-connected disability. CONCLUSION OF LAW The criteria for service connection for left ear hearing loss are not met. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1964 to February 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The Veteran initially requested a hearing before a Veterans Law Judge; however, he withdrew that request for a hearing in a November 2018 correspondence. In November 2019, the Board remanded the Veteran’s claim of entitlement to service connection for left ear hearing loss for additional development and it now returns for further appellate review. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38U.S.C. §1131; 38C.F.R. §3.303(a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38C.F.R. § 3.303(d). Service connection for a disability requires evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F. 3d 1163 (Fed. Cir. 2004). In cases where a hearing loss disability is claimed, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the above frequencies 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. Thresholds for normal hearing are between zero and 20 decibels, and higher thresholds show some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155 (1993). Generally, a preexisting injury or disease will be considered to have been aggravated by active service where there was an increase in disability during such service, unless there is a specific finding that the increase in disability was due to the natural progress of the disease; however, 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. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder is not presumed to have been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). Finally, service connection may also be established on a secondary basis for a disability which is proximately caused by or aggravated by a condition for which service connection has already been established. 38 C.F.R. § 3.310. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346–1347 (Fed. Cir. 2002); Hunt v. Derwinksi, 1 Vet. App. 292, 297 (1991). The Veteran contends that his currently diagnosed left ear hearing loss is related to his conceded in-service exposure to excessive noise as a Transportation Supply Inspector. In this regard, his service treatment records reflect that, upon audiological testing at his January 1964 entrance examination, the Veteran presented with a 55-decibel loss (60 decibel loss after conversion to ISO-ANSI units) of the left ear at 4000 Hz. The examining physician specifically noted the hearing loss disability, though such was not considered disabling and the Veteran was accepted into service. Accordingly, the Board finds that such left ear hearing loss clearly meets the definition for hearing loss disability on entrance into military service. Therefore, he is not presumed sound as to that disability. See 38 U.S.C. § 1111; 38 C.F.R. § 3.385. In March 2014, the Veteran underwent medical examination, at which time the VA examiner noted that the Veteran’s left ear hearing loss was less likely than not (i.e., less than a 50 percent probability) caused by or a result of his military service. In this regard, the examiner emphasized that the Veteran’s left ear hearing loss pre-existing his military service and was not noted to have worsened during his time in the military, as reflected in the separation examination. The Board notes that such was also not shown to have worsened to a compensable degree within one year of the Veteran’s separation from military service. While the March 2014 opinion addressed a lack of direct nexus between the Veteran’s left ear hearing loss and his military service, it failed to address the question of aggravation. Accordingly, the claim was remanded in November 2019 to obtain an addendum opinion that discussed aggravation. In December 2019, such addendum opinion was obtained, and the VA audiologist opined that the Veteran’s left ear hearing loss was not aggravated by his military service. In providing such opinion, the examiner focused on both a lack of any shift in hearing acuity during the Veteran’s time in military service, as well as the lack of any other documented shift in hearing acuity for many years following the Veteran’s separation from service. The examiner found extremely probative the Veteran’s 2003 report that his loss of left ear hearing acuity occurred when he was struck by a wave while on vacation at the beach in 2002. The December 2019 VA examiner also found that the Veteran’s left ear hearing loss has not been caused or aggravated by his service-connected right ear hearing loss or tinnitus. In this regard, the examiner explained that neither tinnitus nor hearing loss in the right ear are capable of causing hearing loss in the left ear. The Board acknowledges the Veteran’s argument that his 1966 separation examination is not valid, as the Veteran does not remember undergoing any audiological examination at that time. Furthermore, the Veteran has argued that the audiological examination results reported in his separation examination were fabricated, as such were identical to the examination results reported in his induction examination. However, the Board notes that such were not completely identical, as the 1966 results did not include test results at the level of 3000 Hz, while the 1964 examination results showed normal hearing at 3000 Hz. Furthermore, though the Veteran may not affirmatively remember undergoing such examination, nothing in the examination report or the evidence of record suggests that such results were fabricated. Upon review, the Board affords probative value to the December 2019 opinion, it was based on audiological examination of the Veteran and reflected consideration of all relevant facts, specifically citing to service treatment records, post-service treatment records, and the Veteran’s lay statements. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Notably, the record does not contain a medical opinion to the contrary. In conclusion, the Board finds that left ear hearing loss is to have pre-existed military service and was not aggravated by the Veteran’s military service, including any noise exposure therein. Likewise, the evidence of record does not demonstrate that the Veteran’s left ear hearing loss was otherwise caused—again, as it pre-existed military service—or is aggravated by his service-connected right ear hearing loss or tinnitus. See 38 U.S.C. §§ 1110, 1111; 38 C.F.R. §§ 3.303, 3.306, 3.310. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for left ear hearing loss. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. at 53. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Breckenridge, 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.