Citation Nr: 21063000 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 17-44 740 DATE: October 12, 2021 ORDER Service connection for bilateral hearing loss is granted. FINDING OF FACT The competent and probative evidence is at least in equipoise that the Veteran's current bilateral hearing loss disability did not pre-exist service and he has had hearing loss since he separated from service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from October 1970 to March 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in March 2019 when it was remanded for additional development. This matter has now returned to the Board for appellate consideration. The Board finds there has been substantial compliance with its prior remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Veteran was provided with an examination for his claim on appeal. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must generally be 1) evidence of a current disability; 2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and 3) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability, which is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused or aggravated by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 43, 448-49 (1995). Service connection for certain diseases may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). A nexus between a current disability and an in-service injury or event may be established by evidence of continuity of symptomatology, if the condition is a chronic disease enumerated under 38 U.S.C. § 1101. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Arthritis is an enumerated chronic disease. See 38 U.S.C. §§ 1101, 1112. In a claim of service connection for impaired hearing, demonstration of the first Shedden element, that is the existence of a current disability is subject to the additional requirements of § 3.385, which provides that service connection for impaired hearing shall not be established until the hearing loss meets pure tone and/or speech recognition criteria. Under this regulation, hearing status will be considered a disability for the purposes of service connection when the auditory thresholds in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these 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. A veteran is presumed to have been in sound condition when enrolled for service, except for any disease or injury noted at the time of enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before enrollment and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). When no pre-existing medical condition is noted upon entry into service, a Veteran is presumed to have been sound upon entry. 38 U.S.C. § 1111; Wagner, 370 F.3d at 1096; Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). If the presumption of soundness applies, the burden then shifts to the Government to rebut the presumption by clear and unmistakable evidence that the disability was both preexisting and not aggravated by service. Wagner, 370 F.3d at 1096; Bagby, 1 Vet. App. at 227. As further explained in Horn v. Shinseki: Once the presumption of soundness applies, the burden of proof remains with the Secretary on both the preexistence and the aggravation prong; it never shifts back to the claimant. In particular, even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness... the burden is not on the claimant to show that his disability increased in severity; rather, it is on VA to establish by clear and unmistakable evidence that it did not or that any increase was due to the natural progress of the disease. 25 Vet. App. 231, 235 (2012). "The Federal Circuit has made clear that the Secretary may rebut the second prong of the presumption of soundness through demonstrating, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was due to the natural progression of the condition." Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009) (citing Wagner, 370 F.3d at 1096). This burden must be met by "affirmative evidence" demonstrating that there was no aggravation. See Horn, 25 Vet. App. at 235. The burden is not met by finding "that the record contains insufficient evidence of aggravation." Id. Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306(b). Clear and unmistakable evidence means that the evidence "'cannot be misinterpreted and misunderstood, i.e., it is undebatable.'" Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). Entitlement to service connection for bilateral hearing loss. The Veteran asserts service connection for bilateral hearing loss to include as due to in-service noise exposure. The question for the Board is whether the Veteran has a bilateral hearing loss disability for VA purposes that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes the Veteran has a current diagnosis of bilateral hearing loss for VA purposes, and the evidence is at least in equipoise that he has had hearing loss since he separated from service. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303. Initially, the Veteran's service treatment records suggest a pre-existing hearing loss disability at his induction examination. In this regard, 40 dB were reported for 4000 Hz bilaterally. The examiner reported a hearing defect. However, the Veteran's clinical evaluation was also reported as normal. See 2/28/2014, STR - Medical. He did not have hearing loss for VA purposes at his separation examination. His private opinion explained that he had a noise notch at 4000 Hz which suggested damage due to loud noise. The October 2020 addendum stated that the Veteran's hearing loss at induction could be a temporary threshold shift just prior to the entry examination and would be consistent with preservice noise exposure. In this regard, the Board finds the Veteran did not have pre-existing hearing loss. The Board acknowledges the 2019 Remand stated the Veteran had pre-existing hearing loss. However, in light of the 2020 addendum suggesting his hearing loss was temporary, the private opinion stating it was a hearing notch, as well as the induction clinical evaluation not showing a specific hearing loss disability, the Board finds that the Veteran was in sound condition regarding his hearing as such disability was not sufficiently noted when he was examined, accepted, and enrolled into active service. 38 U.S.C. § 1111. The Veteran has a current diagnosis of bilateral hearing loss to include as reported at the December 2019 examination. As such, the first element of service connection is met. The Veteran's military occupational specialty was as a plumber. He has asserted during the period on appeal that he worked in the engineering department driving large trucks, hauled heavy equipment, and fired weapons. He did not use hearing protection. His hearing has progressively worsened since he was discharged. The Board finds the Veteran competent and credible to describe his hearing impairments and when they began. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board previously found the 2014 examination applied the incorrect standards for direct service connection and aggravation. The 2015 private opinion provided a positive nexus. The audiologist addressed the Veteran's in-service heavy noise exposure and accounted for his statement that his hearing loss progressively worsened after service. However, the 2015 private opinion did not address noise exposure after service or that the Veteran's hearing improved at separation. The Board finds this opinion to have some probative value. The examiner accounted for the Veteran's credible lay statements as well as his in-service noise exposure. However, the examiner did not address his after-service noise exposure. For these reasons, the Board finds this opinion to have some probative value. The December 2019 nexus opinion was conclusory, so an addendum opinion was obtained. The Board finds the 2019 nexus opinion to have no probative value due to its inherently conclusory findings. The 2020 addendum provided a negative nexus opinion. The examiner stated there was no significant threshold shift during active duty, and therefore his bilateral hearing loss was less likely related to service. The examiner stated that his increase in hearing loss was due to natural progression or noise exposure after service. The Board finds this opinion to have some probative value. The examiner accounts for the Veteran's post-service noise exposure which the examiner stated was the cause of his bilateral hearing loss disability. However, the examiner did not account for the Veteran's credible statements regarding in-service noise exposure. After review of the competent and probative evidence, the Board finds the evidence is at least in equipoise that the Veteran's bilateral hearing loss for VA purposes began during or shortly after service. In this regard, the Board acknowledges the negative nexus opinion. However, for the reasons as reported above, the Board finds it to have only some probative value. Likewise, the private positive nexus opinion has only some probative value. Both opinions failed to fully account for the evidence of record; either noise exposure after service or noise exposure during service. The Veteran submitted lay statements that he has had hearing loss symptoms since he exited service. As previously found, the Veteran is credible. (Continued on the next page) As the positive and negative nexus opinions of record have strengths and weakness, the Board finds that they balance out. 38 C.F.R. § 3.102; see Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (noting that the benefit of the doubt rule is a unique standard of proof, and "the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding such benefits"). As such, the Board finds the evidence is at least in equipoise that the Veteran's current bilateral hearing loss for VA purposes is due to noise exposure during active duty. Therefore, service connection for bilateral hearing loss is warranted. 38 C.F.R. § 3.102, 3.303. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Morales, 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.