Citation Nr: 21005125 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 14-07 885 DATE: January 29, 2021 ORDER Entitlement to service connection for bilateral hearing loss disability is granted. FINDING OF FACT The evidence does not demonstrate by clear and unmistakable evidence that a pre-service hearing loss disability was not aggravated by active service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss disability have been met. 38 U.S.C. §§ 1111, 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1961 to October 1964. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). The Board denied the claim on appeal in a March 2018 decision, which the Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court). In December 2018, pursuant to a Joint Motion for Remand filed by the parties to this matter, the Court vacated the Board’s decision and remanded this matter for additional consideration. In July 2019 and June 2020, the Board remanded this matter for additional medical inquiry. The case is again before the Board for appellate review. Service Connection The Veteran claims he incurred hearing loss disability during service. Laws and regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. In all cases, a veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). “When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry.” Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The “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). Where a pre-existing disability is noted upon entrance examination and is shown to have increased in severity during service, it is presumed that such increase in severity caused aggravation of the pre-service disorder, unless clear and unmistakable evidence establishes that the increase represents the natural progression of the condition. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Under VA guidelines, hearing loss will be considered a disability for compensation purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least 3 of the frequencies 500, 1000, 2000, 3000 or 4000 Hz 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. Evidence and analysis The evidence in this matter consists of lay statements from the Veteran, service treatment records (STRs), VA treatment records, private medical reports dated in October, November, and December 2013, and VA compensation examination reports dated in February and September 2020. The evidence demonstrates that the Veteran has a hearing loss disability under 38 C.F.R. § 3.385. Both the private and VA reports note auditory thresholds higher than 40 decibels in multiple frequencies in each ear. A service connection finding is warranted for bilateral hearing loss disability because the evidence indicates that active service may have aggravated a pre-service hearing loss disability. An October 1961 enlistment report of medical examination notes normal ears upon examination at entrance onto active service. As such, the presumption of soundness applies to this claim. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Nevertheless, the audiogram results noted in the enlistment report indicate auditory thresholds of 30 decibels at 4000 Hz frequency. In the February 2020 VA report, the examiner indicated that, based on the audiogram, the Veteran clearly and unmistakably had a pre-service hearing loss disorder. As such, it is clear and unmistakable that the Veteran entered service with a hearing loss disability. The evidence indicates that hearing loss disability increased in severity during service. Although the July 1964 discharge report of medical examination notes normal ears, the accompanying audiogram notes an auditory threshold of 40 decibels at 4000 Hz in the left ear. This shows a worsening of hearing acuity during service. (Continued on the next page)   Lastly, the evidence does not show that the pre-service hearing loss disability was not aggravated by service. To deny the claim here, the evidence must show this by clear and unmistakable evidence. Two opinions of record address the issue. The first is provided in the February 2020 VA report. Therein, the examiner found it unlikely that the pre-service disorder was aggravated by service. In June 2020, the Board requested an addendum medical opinion addressing the claim using the proper evidentiary standard under 38 U.S.C. § 1111. In the September 2020 addendum report, the examiner stated that clear and unmistakable evidence demonstrated that hearing loss was not aggravated by service. But the premise of that finding is – “it is less likely than not that the veteran’s hearing loss was aggravated as a result of military noise exposure.” Thus, neither opinion addressing the issue of aggravation uses the proper evidentiary standard here. Neither is of probative value, therefore. Similarly, the private medical opinions do not use the proper evidentiary standard either, so none is persuasive on the issue before the Board. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician’s statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion). And the state of the evidence is further confounded by the lay evidence of record in which the Veteran asserts that noise exposure during service worsened his hearing. As a layperson, he is competent to report observable symptomatology such as diminished hearing acuity. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In sum, clear and unmistakable evidence shows that the Veteran entered service with a hearing loss disability. But clear and unmistakable evidence does not show that the disorder was not aggravated during service. As such, a service connection finding is warranted for bilateral hearing loss disability. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher McEntee, 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.