Citation Nr: 21004940 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 15-13 069 DATE: January 28, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. The Veteran’s right ear hearing loss was noted upon entrance into service and was not aggravated during the Veteran’s service. 2. The Veteran’s left ear hearing loss clearly and unmistakably preexisted service and clearly and unmistakably was not aggravated by service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 1153; 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a), 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1970 to April 1972. This matter comes before the Board of Veterans’ Appeals (Board) from a rating decision by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran and his spouse testified before the undersigned in an April 2018 Board hearing. A transcript of the hearing is of record. In September 2018 and June 2020, the Board remanded this matter for further development. In April 2020 and September 2020, the Veteran sent a letter stating his desire to opt-in to the Appeals Modernization Act (AMA) appeals system. However, a request to opt-in to AMA needs to be received on the appropriate form, a VA Form 10182, 20-0995 or 20-0996 pursuant to 38 C.F.R. § 19.2. The Veteran was provided these instructions in an August 2020 letter from VA. As the Veteran did not formally opt-in to AMA the appeal will proceed under the legacy appeal system. 1. Entitlement to service connection for bilateral hearing loss The Veteran contends that his hearing loss began in service. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir.1996) (table). Where a veteran served continuously for ninety days or more during a period of war or during peacetime service after December 31, 1946, and a chronic disease, such as sensorineural hearing loss, becomes manifest to a degree of ten percent within one year of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service even though there is no evidence of such disease during the period of service. 38 U.S.C. § 1101, 1112, 1113, 1137; 38 C.F.R. § 3.307, 3.309. The disease need not be diagnosed within a presumptive period, it must be shown by acceptable medical or lay evidence that there were characteristic manifestations of the disease to the required degree during that time. Id. Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303 (b). The second and third elements outlined above may be established by showing continuity of symptomatology for certain specified diseases. Continuity of symptomatology may be shown by demonstrating “(1) that a chronic disease was ‘noted’ during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.” Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316 ; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the veteran, and the veteran’s demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed.Cir.1996). Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified puretone and speech recognition criteria. Audiometric testing measures puretone threshold hearing levels (in decibels) over a range of frequencies (in hertz). See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 hertz 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. In Hensley, the Court explained that the threshold for normal hearing is from zero to 20 decibels and that higher threshold levels indicate some degree of hearing loss. See 5 Vet. App. at 157. A veteran is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that the disability (1) existed prior to service and (2) was not aggravated by service will rebut the presumption of soundness. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); Horn v. Shinseki, 25 Vet. App. 231, 235 (2012); VAOPGCPREC 3-2003. The Veteran’s service treatment records include an induction examination in July 1970 and a separation examination in March 1972. The Veteran underwent a puretone threshold tests. The Board notes that it is Board policy to consider both American Standards Association (ASA) units and International Standards Organization-American National Standards Institute (ISO-ANSI) between January 1967 and December 1970 when it is unclear is unclear which test was used. From January 1970, ISO-ANSI is assumed to have been used. The puretone threshold test for the July 1970 was identified in the service treatment records as ASA and the Board will therefore convert the ASA measurements to ISO. As it relates to VA examinations and VA records, audiological reports were routinely converted from ISO-ANSI results to ASA units until the end of 1975 because the regulatory standard for evaluating hearing loss was not changed to require ISO-ANSI units until September 9, 1975. Thus, where necessary to facilitate data comparison the ASA standards will be converted to ISO-ANSI standard. In July 1970, the Veteran underwent a service entrance audiological examination. The audiological test was identified as ASA. The puretone threshold (with conversions to ISO noted in parenthesis) results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 (40) 35 (45) 25 (35) - 25 (30) LEFT 15 (30) 5 (15) -5 (5) - 30 (35) The July 1970 entrance examination notes that the Veteran was given an H2 profile for defective hearing. Upon separation in March 1972, the Veteran underwent an audiological examination. The audiological examination did not specify whether ISO or ASA was utilized. It is Board policy that ISO is assumed to be used after December 31, 1970. Therefore, the results without conversion is as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 5 0 - 5 LEFT 15 5 0 - 10 The July 1970 audiogram reflects VA defined hearing loss in the right ear. 38 C.F.R. § 3.385. As a right ear hearing loss disability was shown at service entrance based on the audiometric scores, and the VA examiner’s identification of hearing loss as a defect from the contemporaneous audiogram, the Veteran is not presumed sound with respect to right ear hearing. The claim for service connection for right ear hearing loss must thus be considered on an aggravation basis. 38 C.F.R. §§ 3.304 (b), 3.306; see also Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). Further, while it is unclear whether the July 1970 examiner intended the H2 profile to include the left ear, the Board finds that the Veteran’s left ear must be presumed sound despite, despite indications of abnormal hearing at the 500 and 4000 Hertz frequencies. McKinney v. McDonald, 28 Vet. App. 15 (2016) (VA must employ 38 C.F.R. § 3.385 standards in determining a preexisting hearing loss disability); see also Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss). Thus, for the left ear, when no preexisting condition is noted upon examination for entry into service, a veteran is presumed to have been sound upon entry, and the burden then shifts to VA to rebut the presumption of soundness. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 C.F.R. § 3.304. To rebut the presumption of soundness under 38 U.S.C. § 1111, there must be clear and unmistakable evidence that (1) a Veteran’s disability existed prior to service, and (2) that the preexisting disability was not aggravated during service. Id. In June 2014, the Veteran stated that he had acoustic trauma during his military service. The Veteran stated he spent a lot time on firing ranges for machine guns and mortars. The Veteran also stated that he was tasked to destroying ammunition that came from Vietnam. In February 2015, the veteran stated that his hearing loss began in service. Specifically, the Veteran noticed his hearing loss during training with rifles and grenades, and noted that he did not wear or was provided hearing protection. The Veteran stated his hearing loss continued during service while he was operating forklifts. The Veteran explained that the forklifts were loud and the one he worked on needed its muffler repaired. In April 2015, the Veteran underwent a VA audiological examination. The puretone thresholds measurements were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 35 50 70 LEFT 25 30 40 55 70 Speech audiometry revealed speech recognition ability of 84 percent in the right ear and of 88 in the left ear. The examiner noted that the Veteran did not have bilateral hearing loss prior to service. The examiner found that the Veteran did not have a permanent positive threshold shift greater than normal measurement variability at any frequency between 500 and 6000 Hz in either ear. The examiner found it is less likely than not the Veteran’s hearing loss is caused by or a result of an event in military service. The examiner reasoned that although the Veteran claimed acoustic trauma secondary to his military service, a thorough review of the Veteran’s record revealed a separation audiogram from March 1972, which suggested excellent hearing sensitivity for both the right and left ear, with absolutely no evidence of acoustic trauma, upon discharge from the miliary. The examiner further explained that the nature of the Veteran’s current hearing loss is more presbycusic in nature, rather than a result of acoustic trauma. In a March 2018 report, a private examiner diagnosed the Veteran with hearing loss. The examiner provided that after reviewing the history provided by the Veteran, it was more likely than not that the Veteran’s hearing loss was the direct result of his exposure to hazardous noise while in service. The examiner noted that “it had been well documented in audiology journals that exposure to hazardous noise, such as this Veteran was exposed, will cause hearing loss and tinnitus (Kujawa, S. and Liberman, C. 2009).” In April 2018, the Veteran’s spouse submitted a statement that she married the Veteran in November 1970. The Veteran’s spouse stated that the Veteran’s hearing loss had become much worse over time. In April 2018, the Veteran testified at a Board hearing. The Veteran stated that during service he began losing his hearing during training, by going to the ranges. The Veteran stated he noticed it the most after he had grenade training. The Veteran stated he did not have any hearing protection. The Veteran stated if he had any hearing loss upon entrance into service, he did not know of it. In April 2018, the Veteran’s spouse testified at the Board hearing. She stated that the Veteran’s hearing was much worse due to exposure to loud noises of shooting guns and driving forklifts. In February 2020, the Veteran underwent another VA audiological examination. The examination report documented bilateral hearing loss for compensation purposes. See 38 C.F.R. § 3.385. The February 2020 examiner found that there is clear and unmistakable evidence that the Veteran had bilateral hearing loss that existed prior to military service, the examiner also found there is no clear and unmistakable evidence that the Veteran’s preexisting hearing loss was not aggravated by service. The examiner stated that the Veteran had normal hearing upon separation from the military. The examiner stated that studies regarding delayed onset of noise-induced hearing loss have presented conflicting results. The examiner went on document various studies that demonstrate the conflicting results. The examiner concluded that the gold standard for determination of auditory damage is positive, permanent shift in auditory thresholds. As a results of the conflicting findings noted above regarding delayed onset noise-induced hearing loss, and the questionable generalizability of rodent studies to humans, the examiner conclude that the 2005 IOM statement still holds true, that there is no conclusive data supporting delayed-onset noise-induced hearing loss. The examiner opined that the Veteran’s preexisting bilateral hearing loss was not aggravated while in military service. In July 2020, VA obtained a medical opinion related to the Veteran’s hearing loss. The examiner opined that the Veteran’s preexisting right ear hearing loss was not aggravated while in service. The examiner reasoned that the Veteran had normal hearing sensitivity at 500 to 4000 Hz on separation examination, which is concrete evidence that the Veteran’s right ear hearing loss was not aggravated beyond normal progression while in military service. The examiner noted that the Veteran’s preexisting right ear hearing loss was completely resolved at separation as indicated by normal hearing sensitive at 500 to 4000 Hz. The July 2020 examiner further opined that the Veteran clearly and unmistakably had hearing loss at 500 and 4000 Hz in the left ear prior to service. The examiner reasoned that once converted to ISO the Veteran had 30 dB at 4000 Hz and 20 dB at 500 Hz, which is hearing loss upon entrance to service. The examiner found the Veteran’s preexisting hearing loss clearing and unmistakably was not aggravated during service. The examiner reasoned that the Veteran had normal hearing upon separation in March 1972, which is concrete evidence that the Veteran’s preexisting hearing loss was not aggravated beyond normal progression while in military service. The examiner further noted that the Veteran’s preexisting hearing loss was clearly and unmistakably resolved at separation. The Board finds that the Veteran has current bilateral hearing loss for VA compensation purposes pursuant to 38 C.F.R. § 3.385. As noted, the Veteran’s right ear hearing loss claim and left ear hearing loss claim each fall under distinct laws and regulations; as such each ear shall be discussed separately below.   A. Right Ear Hearing Loss The Veteran’s right ear hearing loss was noted upon entrance into service. If a preexisting disability is noted upon entry into service, a Veteran cannot bring a claim for service connection for that particular disability, but the Veteran may bring a claim for service-connected aggravation of that disability. U.S.C. § 1153; Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); Jensen v. Brown, 19 F.3d 1413 (Fed. Cir. 1994). A preexisting disease or injury will be considered to have been aggravated by active military, naval, or air service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38U.S.C. §1153; 38C.F.R. §3.306 (a). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. 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. 38C.F.R. §3.306 (b). These provisions apply to only one situation: where the induction examination notes a preexisting condition that is alleged to have been aggravated. Horn v. Shinseki, 25Vet. App.231, 238 (2012) (quoting Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) ("[I]f a preexisting disorder is noted upon entry into service . . . the veteran may bring a claim for service-connected aggravation of that disorder. In that case section 1153 applies and the burden falls on the veteran to establish aggravation."). Thus, in order for the Veteran to prevail in his claim for service connection for right ear hearing loss there must be evidence of worsening of right ear hearing loss during service beyond the natural progression of the disorder. The evidence is against the Veteran’s claim. First, the Veteran’s audiogram from entrance to separation document that the Veteran’s puretone thresholds improved. Further, the April 2015, February 2020, and July 2020 VA examiners’ negative rationale in part relied on the fact that the Veteran’s hearing in his right ear improved from entrance into service to his separation. (the Board previously found the April 2015 and February 2020 opinions inadequate and only point to the consistent findings that the Veteran’s right ear hearing improved from entrance to separation) The July 2020 VA examiner specifically noted that the Veteran’s right ear hearing loss was not aggravated by service. Thus, the Board finds that the presumption of aggravation cannot attach to the Veteran’s right ear hearing loss claim and the claim must be denied. The Board notes that April 2015 VA examiner found that the Veteran’s right ear did not preexist his entrance upon service. However, the Board finds that finding is inconsistent with the evidence in the record. Notably, the Veteran’s service entrance examination noted hearing loss and right ear hearing loss for VA compensation purposes is documented at the entrance audiogram. Thus, the April 2015 indication holds no probative weight. B. Left Ear Hearing Loss Based upon the record, the Board finds that the Veteran’s left ear hearing loss clearly and unmistakably preexisted service and clearly and unmistakably was not aggravated by service. The record indicates that hearing loss was noted upon entrance into service. However, as noted, the Veteran’s entrance audiogram did not demonstrate left ear hearing loss for compensation purposes, thus is not considered noted. Therefore, the presumption of soundness as it related to the Veteran’s left ear hearing loss. Once the presumption of soundness applies, the burden of proof shifts to and remains with VA to prove both preexistence and aggravation by clear and unmistakable evidence. A “claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong,” even if clear and unmistakable evidence establishes that a disease preexisted service. In other words, the “burden is not on the claimant to show that his disability increased in severity.” To the contrary, the burden is on VA to “establish by clear and unmistakable evidence that [a preexisting disease] did not [increase in severity during service] or that any increase was due to the natural progress of the disease.” This burden must be met by “affirmative evidence” demonstrating that there was no aggravation. The burden is not met by finding “that the record contains insufficient evidence of aggravation.” Horn, supra. The Board finds that there is clear and unmistakable evidence that the Veteran’s left ear hearing loss preexisted service. The July 2020 VA examiner found there was clear and unmistakable evidence that the Veteran’s left ear hearing loss preexisted service because the Veteran’s audiogram documented hearing loss at 500 and 4000 Hz upon entrance to service. Therefore, the first prong of the presumption of soundness is rebutted. The Board finds that there is clear and unmistakable evidence that the Veteran’s left ear hearing loss was not aggravated during service. The July 2020 VA examiner found that the Veteran’s left ear hearing loss actually improved during service and therefore there was clear and unmistakable evidence that it was not aggravated during service. Therefore, the second prong of the presumption of soundness is rebutted. Thus, the Board finds the evidence establishes by clear and unmistakable evidence both that the Veteran’s left ear hearing loss preexisted service and was not aggravated by such. Thus, the presumption of soundness is rebutted in its entirety and service connection is denied. As service connection cannot be established for a condition when the presumption of soundness is rebutted, service connection is not warranted for the preexisting left ear hearing loss. See Wagner, 370 F.3d at 1096. The Board concludes that the Veteran’s right ear hearing loss was noted upon entrance to service and the evidence is against finding the right ear hearing loss was aggravated during service; and the Veteran’s left ear hearing loss clearly and unmistakable preexisted service and clearly and unmistakably was not aggravated by service. Therefore, the Board finds that the weight of the evidence is against the claim and service connection for bilateral hearing loss is not warranted. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). While the Board acknowledges and has considered the lay statements of record regarding the circumstances of the Veteran’s service, and nature and course of his hearing loss, the Board finds that the question of whether the Veteran’s current right ear hearing loss is the result of aggravation of the preexisting right ear hearing loss in service as well as the question of whether the Veteran’s left ear hearing loss preexisted service and was or was not aggravated in service, both require medical training and expertise. Thus, in this case, the Board has accorded the medical evidence as outlined above the greater probative weight, and the most recent VA examination report the greatest probative value based the information and explanation provided therein. Finally, the Board considered the positive April 2018 private medical opinion. However, the opinion is not probative. Although the private opinion linked the Veteran’s current hearing loss to claimed acoustic trauma in service, it failed to discuss the Veteran’s more pertinent history of hearing loss upon entrance into service. The Board finds that the July 2020 VA medical is the only probative medical opinion in the record as it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Robert Batten 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.