Citation Nr: 21063406 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 16-29 702 DATE: October 14, 2021 ORDER Entitlement to service connection for right ear hearing loss is denied. FINDING OF FACT 1. Right ear hearing loss was noted when the Veteran was examined for enlistment. 2. The Veteran's preexisting right ear hearing loss was not aggravated beyond its natural progression during service. CONCLUSION OF LAW The criteria for entitlement to service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1131, 1153, 5107(b); 38 C.F.R. §§ 3.102, 3.304, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Marine Corps from November 1982 to October 1986. This matter comes to the Board of Veterans' Appeals (the Board) on appeal from a July 2013 rating decision in which the Agency of Original Jurisdiction (AOJ) denied entitlement to service connection for bilateral hearing loss. The Board notes that the Veteran specifically appealed only the issue of entitlement to service connection for right ear hearing loss in his June 2016 VA Form 9. The Veteran's appeal was most recently before the Board in April 2021. It was remanded under Stegall v. West, 11 Vet. App. 268 (1998), as the Veteran's October 2019 Department of Veterans Affairs (VA) examination did not comply with the remand directives set forth in the Board's prior remand in December 2018. The AOJ obtained the appropriate/requested addendum opinion in May 2021, and the matter has now returned to the Board. 1. Entitlement to Service Connection for Right Ear Hearing Loss The Veteran contends that he is entitled to service connection for right ear hearing loss that occurred as a result of in-service noise exposure. He also relates his hearing loss to a March 1983 horseplay incident being slapped in both ears. Veterans shall be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1092 (Fed. Cir. 2004). Cases in which the condition is noted upon entry into service, as is the situation here, are governed by the presumption of aggravation of a preexisting disability contained in 38 U.S.C. § 1153 (as opposed to the presumption of soundness applicable under 38 U.S.C. § 1111, where the complained-of condition was not noted upon entry into service). This statute provides that a preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progression of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. In order to trigger the application of the presumption of aggravation, the preponderance of the evidence must show that there was an increase in disability during service. See Wagner, 370 F.3d at 1096. The initial burden falls on the Veteran to establish an increase in the severity of the preexisting disability. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). Where the preexisting disability underwent an increase in severity during service, the burden is on VA to rebut the presumption of aggravation by clear and unmistakable evidence. 38 C.F.R. § 3.306(b). This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progression of the condition. 38 C.F.R. § 3.306(b). VA may show a lack of aggravation by establishing with clear and unmistakable evidence that there was no increase in disability during service or that any increase in disability was due to the natural progression of the preexisting condition. See Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition itself, as contrasted with mere symptoms, has worsened. See Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). It was noted on the Veteran's August 1982 entrance examination that he had a history of severe right ear hearing loss since birth. The Veteran also submitted multiple lay statements reporting that he had right ear hearing loss upon entering active service, possibly due to a history of childhood ear infections. The Veteran received an audiological evaluation as a part of his entrance examination; the results of the audiogram were as follows: August 1982 HERTZ 500 1000 2000 3000 4000 RIGHT 75 65 70 80 80 In addition to right ear hearing loss as defined by 38 C.F.R. § 3.385, the examiner noted right ear nerve damage, which is also indicative of hearing loss. As the entrance examination notes that the Veteran had right ear hearing loss, he cannot be presumed to have been in sound condition upon his entry into service. See 38 U.S.C. § 1111. Thus, the question turns to whether the preponderance of the evidence shows that the Veteran's preexisting right ear hearing loss underwent an increase in severity during service. For the reasons to follow, however, the Board concludes that the preponderance of the evidence does not show that the Veteran's right ear hearing loss worsened during his active service. The Veteran received several audiological evaluations throughout his active service. In June 1984, the Veteran's audiological results were as follows: June 1984 HERTZ 500 1000 2000 3000 4000 RIGHT 65 75 70 65 75 The examination noted that the Veteran had severe hearing loss in his right ear across all frequencies since childhood. As compared to his August 1982 entrance examination, this June 1984 audiogram shows that his hearing worsened at the 1000 Hz frequency by 10 dB, remained the same at the 2000 Hz frequency, and improved at the 500, 3000, and 4000 Hz frequencies. The Veteran next received an audiological evaluation in May 1985, and the results were as follows: May 1985 HERTZ 500 1000 2000 3000 4000 RIGHT 60 65 65 55 75 This audiogram showed improved hearing acuity at all frequencies except for 1000 Hz, which remained the same as his initial August 1982 audiological evaluation. A July 1985 audiogram showed the following results: July 1985 HERTZ 500 1000 2000 3000 4000 RIGHT 75 75 65 65 75 According to this evaluation, the Veteran's hearing was worse by 10 dB at the 1000 Hz frequency as compared to his August 1982 entrance examination. His hearing remained the same at the 500 Hz frequency and improved at the 2000, 3000, and 4000 Hz frequencies. The Veteran's next audiological evaluation occurred in June 1986 and provided the following results: June 1986 HERTZ 500 1000 2000 3000 4000 RIGHT 70 70 75 80 80 This audiogram shows that the Veteran's hearing worsened at the 1000 (10 dB shift) and 2000 Hz (5 dB shift)frequencies, remained the same at the 3000 and 4000 Hz frequencies, and improved at the 500 Hz frequency when compared to his August 1982 audiogram. Another audiogram was performed in August 1986. At that time, the Veteran's hearing was measured as follows: August 1986 HERTZ 500 1000 2000 3000 4000 RIGHT 75 75 70 75 70 When compared to his August 1982 audiological evaluation, this test showed that the Veteran's hearing was worse at the 1000 Hz frequency, which was once again a shift of 10 dB (65 versus 75). His hearing stayed the same at the 500 and 2000 Hz frequencies and improved at the 3000 and 4000 Hz frequencies. The Veteran's separation examination was conducted in September 1986. His hearing was measured as follows: September 1986 HERTZ 500 1000 2000 3000 4000 RIGHT 75 75 70 75 70 As above, when compared to his entrance examination in August 1982, the Veteran's separation examination showed that the Veteran's hearing worsened by 10 dB at the 1000 Hz frequency. It remained the same at the 500 and 2000 Hz frequencies, while it improved at the 3000 and 4000 Hz frequencies. The Veteran also received a post-service audiogram in April 1987, less than one year following his separation from service. The results of that evaluation were as follows: April 1987 HERTZ 500 1000 2000 3000 4000 RIGHT 70 70 55 70 90 The results of this audiogram show that the Veteran's hearing worsened at the 1000 and 4000 Hz frequencies as compared to his August 1982 audiogram. A 10 dB shift was noted at both frequencies. His hearing was better/improved at the 500, 2000, and 3000 Hz frequencies. In addition to the in-service and post-service audiograms, the record contains a May 2021 medical opinion from a VA examiner. After considering the Veteran's lay statements regarding hearing loss due to noise exposure and/or a horseplay incident, his in-service audiograms, the April 1987 post-service audiogram, and a June 2015 opinion from the Veteran's primary care physician, the VA examiner opined that his right ear hearing loss was not aggravated beyond its natural progression during service. Her rationale was that the Veteran's entrance and separation examinations showed the same level of right ear hearing loss with no standard threshold shift, as did all of the Veteran's in-service audiological evaluations. The examiner explained that a standard threshold shift is defined as "a shift of +/- 15 dB or greater at 1000, 2000, 3000, or 4000 Hz, or a shift of +/- 10dB or greater in the average across 2000, 3000, and 4000 Hz." As the Veteran's audiograms did not show this shift, the examiner determined that his right ear hearing loss was not aggravated by service. Furthermore, she addressed the Veteran's post-service audiological evaluation, conducted in April 1987, and found that there was no significant change from his separation audiogram to his April 1987 audiogram; thus, it did not show aggravation either. The Board finds the May 2021 VA examiner's opinion highly probative because 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). Consideration has been given to the June 2015 opinion from Dr. L.V., the Veteran's primary care physician. She opined that the Veteran's decreased hearing started during active service due to heavy artillery noise and got progressively worse. She further stated that "it is more likely [than] not that [the Veteran's] hearing deficit is the result of incidents and noise exposure while serving on active duty." There is no evidence that Dr. L.V. reviewed the Veteran's service treatment records. Such is not a fatal flaw. However, in the context of the present appeal, the failure to address and consider the Veteran's audiograms or his entrance examination noting a history of severe right ear hearing loss that predated service reduces the overall probative value of the opinion. Dr. L.V. also failed to provide a rationale for her opinion. See Nieves-Rodriguez, 22 Vet. App. at 304. By contrast, as discussed above, the VA examiner provided a detailed analysis of the in-service audiology testing and the significance of testing results. The Board consequently affords more probative value to the May 2021 VA medical opinion. Furthermore, the Board acknowledges the Veteran's lay statements contending that his preexisting right ear hearing loss was aggravated by his active service as a result of rifle range and training exposure to explosions, as well as an injury sustained during a horseplay incident. However, as discussed above, the VA examiner determined that there was no evidence showing a worsening of the Veteran's right ear hearing loss during service. Such was based on consideration of the Veteran's lay reports, along with service and post-service medical evidence. As the most competent and credible evidence of record does not show an increase in the severity of the Veteran's right ear hearing loss during service, the presumption of aggravation does not attach. As such, a discussion of clear and unmistakable evidence to rebut the presumption of aggravation is not required. Wagner, 370 F.3d at 1096. Because the Veteran's preexisting right ear hearing loss was not aggravated by military service, entitlement to service connection must be denied. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M. Sachs, Associate 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.