Citation Nr: 21066446 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 18-16 059 DATE: November 1, 2021 ORDER Service connection for bilateral hearing loss is granted. FINDINGS OF FACT 1. The Veteran's right ear hearing loss had its onset in service. 2. The Veteran's left ear hearing loss was noted upon entrance into active service and underwent a permanent increase in severity during service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1111, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from January 1974 to January 1977. On his VA Form 9, dated February 2018, the Veteran requested a live videoconference hearing before a member of the Board of Veterans' Appeals (Board). In a letter dated in September, VA notified the Veteran that he was scheduled for a hearing before a member of the Board in October 2021. This notice was mailed to the Veteran's last known address of record. It was not returned as undeliverable by the postal service. The Veteran failed to report for this scheduled hearing without good cause. VA has received no communication, written or otherwise, from the Veteran pertaining to the hearing. Because the Veteran has failed to appear for his scheduled hearing without good cause and there has been no request for postponement, his request for a hearing will therefore be considered withdrawn. The Veteran seeks service connection for bilateral hearing loss, which he contends began in service and has been recurrent since that time. See, e.g., Statement (August 10, 2016). To establish service connection for a claimed disorder, the following criteria must be met: (1) medical evidence of a current disability; (2) evidence of an in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and current disability. 38 C.F.R. § 3.303; see also, Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be granted for a disability resulting in a disease or injury that is incurred in or aggravated by active duty military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 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. Initially, the September 2016 VA audiological examination report shows that the Veteran has a current left and right ear hearing loss disabilities pursuant to 38 C.F.R. § 3.385. Additionally, the Veteran's military occupational specialtymilitary policemanis consistent with his reported exposure to loud noise during service. See, e.g., Notice of Disagreement (August 9, 2017) and DD Form 214. Right ear hearing loss The competent and credible evidence of record shows that the Veteran's current right ear hearing loss had its onset during service and has been continuous since that time. In this regard, the Veteran has consistently reported that he has experienced recurrent hearing loss since exposure to loud noise during service. See, e.g., Notice of Disagreement (August 9, 2017); Statement (August 10, 2016). The Veteran is competent to attest to the onset of his hearing loss symptoms and the Board finds his statements credible. See Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In September 2016, the VA examiner opined that it was less likely than not that the Veteran's current right ear hearing loss is due to an event in military service, on the basis that there were no significant changes in hearing thresholds during service and delayed onset hearing loss is unlikely. The examiner further opined that the Veteran's right ear hearing loss preexisted service: referencing the Veteran's January 1974 enlistment examination report. The Board finds that the Veteran's right ear hearing loss, which was noted at entry to service, was not a disability for VA purposes. See 38 C.F.R. § 3.385. Specifically, the Veteran's January 1974 enlistment examination report shows the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz was not 40 decibels or greater, and that only one of the auditory thresholds was greater than 26 decibels. 38 C.F.R. § 3.385. As such, the presumption of soundness applies. McKinney v. McDonald, 28 Vet. App. 15, 21 (2016) (holding that where the degree of hearing loss noted on a veteran's entrance medical examination does not meet VA's definition of a "disability" for hearing loss under 38 C.F.R. § 3.385, the veteran is entitled to the presumption of soundness); 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b), 3.385. In this regard, the Board observes that in promulgating 38 C.F.R. § 3.385, VA explained in the Federal Register that it was amending VA's adjudication regulations regarding the definition of disability due to impaired hearing to clarify that it merely sets forth the base criteria for determining the point at which impaired hearing is considered a disability and that the regulation did not constitute a substantive change to the regulation. 59 FR 60560, 59 FR 60560. In light of the decision of the United States Court of Appeals for Veterans Claims (Court) in McKinney, the Board finds that the Veteran must be presumed sound at entry. Significantly, audiological evaluations conducted more than one year after enlistment and at the time of separation from service both show that the Veteran met the criteria for right ear hearing loss disabilities. In sum, the lay and medical evidence of record establishes that the Veteran's right ear hearing loss first satisfied the criteria for 38 C.F.R. § 3.385 during service and has been recurrent since that time. As the Veteran's current right ear hearing loss had its onset during service, service connection for right ear hearing loss is warranted. The Board notes that the September 2016 VA examiner's opinions that the Veteran's current right ear hearing loss preexisted and is not related to service carries minimal probative value as it does not address the Veteran's credible report that his symptoms had onset during service. Left ear hearing loss The Board finds that the Veteran's left ear hearing loss was noted at entry to service and amounted to a disability for VA purposes. See 38 C.F.R. § 3.385; McKinney, 28 Vet. App. at 21. Specifically, the Veteran's January 1974 enlistment examination report shows 60 decibels at 4000 Hertz. If a preexisting disorder is noted upon entry into service, service connection may be granted based on aggravation during service of that disorder. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b). A preexisting injury or disease 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. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b); see Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) (explaining that the burden is on the government to show a lack of aggravation by establishing that the increase in disability is due to the natural progress of the disease). The lay and medical evidence of record shows that the Veteran's left ear hearing loss was aggravated during service. In this regard, a comparison of the January 1974 and March 1975 service audiological evaluations shows that decibels increased at 4000 Hertz. Additionally, the Veteran has consistently reported that that he began to notice hearing loss symptoms in service and that such have progressively worsened since their onset. See, e.g., Notice of Disagreement (August 9, 2017); Statement (August 10, 2016). The Veteran is competent to attest to the nature of his hearing loss symptoms and the Board finds his statements credible. See Layno, 6 Vet. App. 465; Jandreau, 492 F.3d 1372. Notably, the evidence does not show that the in-service increase in disability was due to the natural progress of the disease. Although the September 2016 VA examiner opined that the Veteran's left ear hearing loss was not aggravated beyond its normal progression during his military service, the opinion does not constitute clear and unmistakable evidence that rebuts the Veteran's presumption of aggravation. See 38 C.F.R. § 3.306(b). In this regard, the sole support for the examiner's opinion was that the Veteran's hearing loss remained stable throughout service. The Board finds that the examiner's opinion is minimally probative as it fails to address the above-discussed in-service threshold shift or the Veteran's competent report of in-service worsening. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007); Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (holding that an examiner should consider and directly address any shifts of acuity thresholds found in the service treatment records even if the shifts do not amount to a hearing loss disability under 38 C.F.R. § 3.385). In light of such deficiencies, the Board finds that the evidence of record is insufficient to rebut the presumption of aggravation. In light of the foregoing, service connection for left and right ear hearing loss is warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joshua R. Castillo, 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.