Citation Nr: 21067277 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-36 305 DATE: November 3, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The preponderance of the evidence does not demonstrate that the Veteran's preexisting bilateral hearing loss was aggravated by active service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from February 1968 to February 1971, including service in the Republic of Vietnam. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this matter in January 2020 for additional development. As the actions specified in the most recent remand have been substantially completed, the case has been properly returned to the Board for appellate consideration. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). In November 2019, the Veteran and A.N. testified before the undersigned Veterans Law Judge at a video conference hearing. A transcript of the hearing is of record. Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection The Veteran seeks service connection for bilateral hearing loss, which he contends was incurred in or caused by active duty service Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified puretone and speech recognition criteria. Audiometric testing measures puretone threshold hearing levels (in decibels) over a range of frequencies (in hertz). Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 hertz is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 hertz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The United States Court of Appeals for Veterans Claims (Court) has held that the threshold for normal hearing is from zero to 20 decibels and higher threshold levels indicate some degree of hearing loss. Hensley, 5 Vet. App. at 157 (citing Current Medical Diagnosis & Treatment, Stephen A. Schroeder, et. al. eds., at 110-11 (1988)). In Hensley, the Court indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the veteran's service and his current disability. The Board notes that the Court's directives in Hensley are consistent with 38 C.F.R. § 3.303(d) which provides that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. The Veteran's service treatment records (STRs) include an August 1967 pre-induction examination that states "hearing defect H-2." His August 1967 pre-induction audiogram showed pure tone thresholds in decibels as follows: 500 Hertz (Hz) 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 25 (40) 25 (35) 15 (25) 15 (20) Left Ear 30 (45) 15 (25) 15 (25) 15 (20) (The numbers in parentheses represent the conversion of the audiometric test results from ASA to ISO units. See 38 C.F.R. § 3.385.) Every veteran is presumed to have been in sound condition at entry into service except as to defects, infirmities, or disorders noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. 38 U.S.C. § 1111 . In this case, a bilateral hearing loss impairment was noted on the Veteran's August 1967 pre-induction examination consistent with 38 C.F.R. § 3.385. When a defect, infirmity, or disorder is noted on the enlistment examination, the presumption of soundness never attaches, and the only benefits that can be awarded are for aggravation pursuant to 38 U.S.C. § 1153 and 38 C.F.R. § 3.306 . See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) (holding that "if a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder"). Thus, the dispositive issue in this case is whether the Veteran's preexisting hearing loss was aggravated by his active service. An important distinction between section 1111's aggravation prong of the presumption of soundness and section 1153's presumption of aggravation is the burden of proof. Under section 1111, the burden is on VA to show by clear and unmistakable evidence that there was no increase in disability in service or, that any increase was due to the natural progress of the disease. See Wagner, 370 F.3d at 1096. However, under section 1153, the Veteran bears the burden of showing that his preexisting condition worsened in service. Once the Veteran establishes worsening, the burden shifts to VA to show by clear and unmistakable evidence that the worsening of the condition was due to the natural progress of the disease. Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). In determining whether there has been aggravation, the statute and regulation indicate that the first question to be asked is whether there was an increase in disability. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a preexisting injury or disease will be considered to have been aggravated by 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"). In other words, if there is an increase in disability during service, aggravation is presumed, and this presumption can only be rebutted with clear and unmistakable evidence that the increase was due to the natural progress of the disease. 38 C.F.R. § 3.306 (b). Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993). If VA determines that there has been an increase in disability, the presumption of aggravation applies regardless of whether the degree of worsening is enough to warrant compensation under the VA rating schedule. Browder v. Derwinski, 1 Vet. App. 204, 207 (1991). On the Veteran's November 1970 exit examination, an audiogram showed pure tone thresholds in decibels, as follows: 500 Hertz (Hz) 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 5 0 15 5 Left Ear 15 15 25 5 The Veteran also indicated that he did not experience hearing loss on his November 1970 exit examination. Aside from noting the Veteran's pre-service hearing defect and audiograms, the Veteran's STRs did not record any complaints, diagnoses, or treatment of hearing loss. The Veteran's military occupational specialty (MOS) was stock control and accounting specialist, which has a low probably of noise exposure. The Veteran testified in his August 2019 Board hearing that during service he was under siege for two months and exposed to noise from heavy rocket fire without protection. He mentioned a specific event where enemy fire blew him out of a jeep and he landed on his right side, and he related that this caused the hearing in his right ear to get as bad as it was. The Veteran further stated that post-service he worked at General Motors for 36 years and was provided with hearing protection. An August 2016 report by a private audiologist included an audiogram displaying bilateral hearing loss. She opined that the Veteran's bilateral hearing loss was at least as likely as not caused by or the result of his military service. The August 2016 private audiologist explained that during service he was exposed to impulse noise, which is a short duration of sound characterized by a shock wave, which is usually the result of the sudden release of energy. However, in light of the Veteran's pre-existing hearing loss, this opinion is not probative as the correct legal standard is not utilized. A December 2016 VA examination by a VA audiologist indicated that he reviewed the Veteran's claims file and conducted an interview. He related that the Veteran reported military noise exposure from weapons fire and had a small amount of post-service occupational noise exposure as a sheet metal roof worker for 36 years. The December 2016 VA examiner conducted an audiogram and diagnosed bilateral hearing loss. He indicated that the Veteran did not have preservice right ear hearing loss and he opined that the Veteran's right ear hearing loss was less likely than not caused by or a result of military service. The December 2016 audiologist explained that there were no significant positive thresholds present when comparing the Veteran's preinduction and separation audiograms. He stated that the Veteran did have preexisting left ear hearing loss and opined that his preexisting left ear hearing loss was not aggravated beyond its normal progression by his military service. The December 2016 audiologist explained that the Veteran's November 1970 audiogram from his separation exam displayed normal hearing in the left ear and stated that there was no evidence of a significant positive threshold shift. However, as the examiner did not convert ASA standards to ISO-ANSI standards, he did not properly consider that the Veteran had preservice bilateral hearing loss. Further, this opinion is of little probative value as the Board previously found the reasoning inadequate in it's January 2020 remand. Thereafter, pursuant to January 2020 remand instructions, a new opinion was obtained. In a June 2021 VA examination report, a VA audiologist noted she reviewed the Veteran's claims file and conducted an interview. She stated that the Veteran was exposed to noise during his military service, and she converted the Veteran's August 1967 pre-induction audiogram and February 1968 entrance audiograms from ASA into ISO-ANSI. The June 2021 audiologist opined that there was clear and unmistakable evidence that the Veteran had preexisting bilateral hearing loss prior to service that was clearly and unmistakably not aggravated beyond its natural progression by his military service. She noted that the Veteran's February 1968 audiogram from his entrance examination displayed bilateral hearing loss which predated his service. The June 2021 VA audiologist determined that the Veteran's November 1970 exit examination audiogram displayed normal hearing. She opined that although the Veteran subjectively reported hearing loss in-service, the evidence of records clearly shows that he did not have a significant threshold shift. She further explained that research studies have shown that hazardous noise exposure has an immediate effect on hearing and it is usually temporary at first. It does not have a delayed onset, nor is it progressive or cumulative. Based on a careful review of all the subjective and clinical evidence, the Board finds that the preponderance of the evidence weighs against finding that service connection for bilateral hearing loss is warranted. In this regard, the Board finds that the most persuasive evidence of record does not show that the Veteran's preexisting bilateral hearing loss increased in severity during his active service. In making this finding, the Board finds that the June 2021 VA medical opinion to be the most probative evidence of record as to the nature and etiology of the Veteran's bilateral hearing loss. This opinion was based on a thorough review of the Veteran's service and post-service treatment records, consideration of his lay assertions, and supported by a fully-articulated rationale using the correct legal standard of "clear and unmistakable." Prejean v. West, 13 Vet. App. 444 (2000); Guerrieri v. Brown, 4 Vet. App. 467 (1993). As such, the Board finds that the opinion is entitled to significant probative weight as to the question of whether the Veteran's hearing loss was worsened or aggravated during service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Significantly, neither the Veteran nor his representative have presented or identified any contrary medical opinion that supports the claim for service connection on the basis of aggravation of a preexisting disability. Finally, the Board acknowledges that the Veteran sincerely believes that service connection is warranted for bilateral hearing loss. However, the Veteran has based his claim on an assertion that his hearing loss was incurred in or caused by military noise exposure. In this regard, the Veteran asserts that he first noticed hearing loss during service. The Veteran is competent to report on matters observed or within his personal knowledge, to include his medical history and the onset of symptoms of disability. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); see also Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, as a layperson not shown to possess appropriate medical training and expertise, the Veteran is not competent to render a persuasive or competent medical opinion as to whether his preexisting hearing loss disability was worsened by military noise exposure. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir 2006). Therefore, any assertion by the Veteran regarding the nature and etiology of his hearing loss is not competent evidence. In summary, the preponderance of the evidence does not demonstrate that the Veteran's preexisting bilateral hearing loss was aggravated by active duty service. Notably, the Veteran has not presented any competent and credible evidence to show a worsening of his bilateral hearing loss during service so as to warrant a presumption of aggravation as contemplated by 38 U.S.C. § 1153 . As noted above, aggravation of a disability may not be conceded in the absence of evidence that the disability in fact worsened during service. 38 C.F.R. § 3.306 (b). As there is no evidence that the Veteran's preexisting hearing loss worsened during his period of active service, the presumption of aggravation does not apply in this case and service connection is not warranted. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (b). As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ahuva D. Sunshine 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.