Citation Nr: 21063785 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 17-10 737 DATE: October 15, 2021 ORDER Entitlement to service connection for left ear hearing loss is denied. FINDING OF FACT The Veteran's left ear hearing loss preexisted his service and was not aggravated beyond the normal progression due to in-service noise exposure. CONCLUSION OF LAW The criteria for service connection for left ear hearing loss are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1966 to January 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2015 Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) rating decision. In May 2019, the Board reopened the claim based on the receipt of new and material evidence but remanded the claim on the merits. Specifically, the AOJ was to provide a VA medical opinion regarding the etiology of the left ear hearing loss and obtain updated VA treatment records. The directives of the Board's remand having been substantially complied with the case is now returned for appellate review. 1. Entitlement to service connection for left ear hearing loss The Veteran seeks service connection for left ear hearing loss. In his February 2017 Appeal to the Board of Veterans' Appeals (VA Form 9), the Veteran asserted that as a result of an in-service explosion in his bunker his hearing deteriorated. See February 2017 Appeal to the Board of Veterans' Appeals (VA Form 9). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three elements required to establish service connection requires are: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). For VA compensation purposes, hearing loss is defined as a disability when the auditory puretone threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory puretone 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. The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The auditory thresholds set forth in § 3.385 establish when hearing loss is severe enough to constitute a disability. Hensley, 5 Vet. App. at 159. Because the Veteran's November 1965 pre-induction audiogram is dated prior to January 1, 1967, it must be converted from American Standards Association (ASA) units to units established by the International Standards Organization (ISO)-American National Standards Institute (ANSI). The conversion from ASA to ISO-ANSI units is accomplished by adding 15 decibels at 500 Hz, 10 decibels at 1000 Hz, 2000 Hz, and 3000 Hz, and 5 decibels at 4000 Hz. In this case, after adding these numbers to the results recorded in the Veteran's pre-service audiogram, that audiogram shows puretone thresholds in the left ear of 10 at 500 Hertz (Hz), 15 at 1000 Hz, 15 at 2000 Hz, 45 at 3000 Hz, and 60 at 4000 Hz. Accordingly, the pre-service audiogram shows a hearing loss disability in the left ear in accordance with 38 C.F.R. § 3.385. As the Veteran was shown to have a left ear hearing loss disability upon entry onto active duty, the presumption of soundness does not attach in this case. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b)(1). If a preexisting disorder is noted upon entry into service, a veteran cannot bring a claim for service connection for that disorder, but a veteran may bring a claim for service-connected aggravation of that disorder. In that case, 38 U.S.C. § 1153 applies and the burden falls on the veteran to establish aggravation. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If the presumption of aggravation under 38 U.S.C. § 1153 arises, the burden shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153; see 38 C.F.R. § 3.306; Jensen, supra, at 1417; Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004). 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. See 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306 (b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). As the presumption of soundness does not apply, the evidence must establish that aggravation of the Veteran's left ear hearing loss occurred during service. As noted, the Veteran has asserted that he noticed a decrease in his hearing following an in-service explosion. The Veteran's November 1967 separation audiogram does not specify whether the puretone thresholds were recorded using ASA units or ISO-ANSI units. For service department audiograms dated between January 1, 1967 to December 31, 1970, Board policy is to consider the audiogram under both standards and rely on the unit measurements most favorable to the Veteran. In this case, because adding decibels to the results (as required when converting from the ASA to the ISO-ANSI standard of measurement) would be favorable to the claim, the Board will consider the results as converted. As converted, the November 1967 audiogram shows puretone thresholds in the left ear of 15 at 500 Hertz (Hz), 15 at 1000 Hz, 20 at 2000 Hz, and 45 at 4000 Hz. Puretone thresholds at 3000 Hz were not recorded for either ear. Accordingly, the separation audiogram continues to show a hearing loss disability in the left ear in accordance with 38 C.F.R. § 3.385. A VA medical opinion was provided in November 2019 that the Veteran's left ear hearing loss was not aggravated beyond the normal progression in military service. The rationale was that the Veteran's left ear hearing loss did not undergo a permanent positive threshold shift (worse than reference threshold) greater than normal measurement variability at any frequency between 500 and 6000 Hz for the left ear in service. The examiner indicated that the Veteran's induction audiometric evaluation and separation evaluation were converted to ASA to ISO as requested. A comparison of the two showed no significant threshold shift and therefore no aggravation of his preexisting hearing loss. The examiner noted the Veteran's claim of left ear hearing loss aggravation due to an explosion during basic training was taken into consideration. The examiner indicated that while the Veteran might have had a temporary threshold shift following the claimed explosion there was no lasting effect as his hearing thresholds at separation were no worse than his thresholds at entrance. The examiner further noted that in its landmark report, Noise and Military Service-Implications for Hearing Loss and Tinnitus (2006), the Institute of Medicine stated that there was no scientific basis on which to conclude that a hearing loss that appeared many years after noise exposure could be causally related to that noise exposure if hearing was normal immediately after the exposure. While the Veteran believes that his left ear hearing loss is related to an in-service noise injury, including an explosion, the Veteran is not competent to provide a nexus opinion in this case. This issue is medically complex, as it requires specialized medical education, knowledge of the interaction between multiple organ systems in the body, and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. Based on the evidence of record the preponderance of the evidence is against the claim for service connection for left ear hearing loss. Thus, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Service connection for left ear hearing loss is not warranted. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sarah B. Richmond, 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.