Citation Nr: 21002624 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 17-04 171 DATE: January 14, 2021 REMANDED Entitlement to service connection for left ear hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1999 to June 2003. The issue on appeal was recently remanded by the Board in October 2019 in part to obtain a medical opinion on etiology of the Veteran’s left ear hearing loss. In a December 2019 opinion, a VA examiner determined that the Veteran’s left ear hearing loss is not at least as likely as not caused by or a result of an event in military service. The examiner noted that that an August 1999 audiogram showed a loss of 45 decibels at 6000 Hertz. On his exit audiogram, the hearing loss had improved to 40 decibels at 6000 Hertz. The examiner opined that the hearing loss is less likely caused by or a result of an event in military service. The examiner noted that the hearing loss did not exist prior to service. However, the examiner further determined that the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner again cited to the improvement of the decibels at 6000 Hertz from the Veteran’s enlistment examination to his separation examination. In January 2020, a VA addendum opinion was rendered by a different examiner clarifying the December 2019 VA opinion. This examiner noted that the August 1999 enlistment hearing examination and a June 2000 hearing examination showed hearing loss at 6000 Hertz in his left ear. His final military hearing examination on February 6, 2003, showed no significant hearing changes in his left ear. (The Board notes that the reference to 1993 clearly is a typographical error, as the Veteran did not serve on active duty in 1993 and his final military hearing examination was dated February 6, 2003.) His October 2003 VA examination showed no significant hearing changes in his left ear. His military occupational specialty (MOS) of machinist is consistent with hazardous noise exposure. The examiner found that his hearing loss clearly and unmistakable existed prior to active duty service and was not aggravated beyond normal progression during his military service. Records clearly show no significant worsening of the preexisting hearing loss in the left ear. The Board finds the December 2019 VA opinion is inadequate due to the contradictory nature of the examiner indicating both that the Veteran’s left ear hearing loss did not exist prior to service and that the claimed condition clearly and unmistakably existed prior to service. Moreover, to the extent that the examiner found that the Veteran’s left ear hearing loss is not at least as likely as not caused by or a result of an event in military service, the Board notes that this opinion appears to be based entirely on a lack of in-service evidence of hearing loss. A Veteran is not, however, required to show a condition during service, as a post-service diagnosis can still be service connected if it is related to an in-service event, such as, in this case, noise exposure. With regard to the January 2020 VA opinion finding that the hearing loss preexisted service, the Board notes that, in McKinney, the United States Court of Appeals for Veterans Claims (Court) addressed when hearing loss noted on an enlistment examination constituted a preexisting disability for compensation purposes. McKinney v. McDonald, 28 Vet. App. 15, 18-19 (2019). The Court held that when the level of hearing loss noted on an enlistment examination does not meet VA’s definition of a hearing disability under 38 C.F.R. § 3.385, a claimant is entitled to the presumption of soundness and, accordingly, the hearing loss noted on the enlistment examination may not be considered a preexisting disability. Id. at 28. Pursuant to 38 C.F.R. § 3.385, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. In this case, while the Veteran’s August 1999 enlistment examination did note an audiometric finding of 45 decibels at 6000 Hertz in the left ear, the Veteran’s left ear hearing acuity did not meet the criteria for hearing loss under 38 C.F.R. § 3.385. Accordingly, applying the holding of McKinney, the Veteran did not have a preexisting hearing disability prior to enlistment for VA compensation purposes. As the January 2020 VA medical opinion was premised upon classifying the Veteran’s hearing disability as a preexisting disability, an additional medical opinion is required on this matter. The matters are REMANDED for the following action: Return the file to an appropriate VA examiner so that an addendum opinion may be obtained. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran’s left ear hearing loss began during or was caused by his active duty service. The examiner is advised that the Veteran’s left ear hearing acuity did not meet the criteria for a hearing loss disability upon entrance into service, so he is presumed sound. The examiner is also advised to consider the Veteran’s reports of in-service noise exposure, as well as his military occupational specialty (MOS) of machinist. The examiner should provide a complete rationale for any opinions provided. If additional examination is needed to render the above-requested opinion, such should be provided. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Durham, 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.