Citation Nr: 21004590 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 15-34 682 DATE: January 27, 2021 REMANDED Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran had active service from August 1971 to March 1974. In November 2018, the Board of Veterans’ Appeals (Board) denied service connection for bilateral hearing loss. The Veteran subsequently appealed to the United States Court of Appeals for Veterans Claims (Court). In May 2020, the Court set aside the November 2018 Board decision and remanded the appeal to Board for additional action. The issue of service connection for bilateral hearing loss is remanded. The Veteran asserts that service connection for bilateral hearing loss is warranted as the preexisting disability was aggravated during active service by in service naval gunfire noise exposure. Service connection may be granted for recurrent disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. A veteran who served after December 31, 1946, is presumed to be in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious and manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in the examination reports are to be considered as noted. 38 U.S.C. §§ 1111, 1137; 38 C.F.R. § 3.304. The presumption of soundness attaches only where there has been an induction examination in which the later complained-of disability was not detected. Bagby v. Derwinski, 1 Vet. App. 225 (1991). The term “noted” denotes only conditions that are recorded in the examination reports and a history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of the conditions. 38 C.F.R. § 3.304(b); Crowe v. Brown, 7 Vet. App. 238 (1994); Contant v. Principi, 17 Vet. App. 116 (2003). Hearing loss for VA purposes is when the thresholds for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz are 40 decibels or more; or the thresholds for at least three of these frequencies are 26 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. When no preexisting condition is noted upon entry into service, a veteran is presumed to have been found sound upon entry. The burden then falls on the Government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran’s disability was both preexisting and not aggravated by service. If that burden is met, then the veteran is not entitled to service connection benefits. However, if the Government does not rebut the presumption of soundness, the claim is one for service connection. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The report of the August 1971 physical examination for service entrance indicates that the Veteran exhibited pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 0 0 - 55 LEFT 0 0 10 - 55 Such audiometric findings constitute bilateral hearing loss for VA purposes. Therefore, the Veteran is not entitled to the presumption of soundness as to bilateral hearing loss. 38 U.S.C. §§ 1111, 1137; 38 C.F.R. § 3.304. A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during service. Where the evidence shows that there was an increase in disability during service, there is a presumption that the disability was aggravated by service. To rebut the presumption of aggravation, there must be clear and unmistakable (obvious or manifest) evidence that the increase in severity was due to the natural progress of the disability. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. The presumption of aggravation is not applicable unless the pre service disability underwent an increase in severity during service. Falzone v. Brown, 8 Vet. App. 398, 402 (1995); see also Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002) (which holds that evidence of a temporary flare-up, without more, does not satisfy the level of proof required of a non-combat veteran to establish an increase in disability) In its March 2020 decision, the Court determined that the report of a July 2013 VA audiological examination was inadequate for rating purposes. The Veteran was afforded an August 2019 audiological examination conducted for VA. The examiner noted that no findings as to the etiology of the diagnosed bilateral hearing loss were made as “VBA did not request etiology.” The Board therefore finds that the examination report is of limited probative value. VA’s duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). When VA undertakes to obtain an evaluation, it must ensure that the evaluation is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Therefore, the Board finds that further VA audiological evaluation. The matter is REMANDED for the following action: Schedule the Veteran for a VA audiological examination to assist in determining the nature and etiology of any identified bilateral hearing loss disability and any relationship to active service. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all hearing loss disabilities found. (b) Opine whether it is clear and unmistakable (obvious or manifest) that the pre existing bilateral hearing loss disability was not aggravated (permanently increased in severity beyond the natural progress of the disorder) during active service. J. T. HUTCHESON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Shawkey, 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.