Citation Nr: 21070045 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 18-12 600 DATE: November 22, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT 1. The Veteran's bilateral hearing loss was noted at entrance into service. 2. The Veteran's bilateral hearing loss did not increase in severity during service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for the United States Army from May 1966 to April 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal of January 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The Veteran provided testimony at a March 2020 videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims folder. Entitlement to service connection for bilateral hearing loss is denied. The Veteran claims service connection for bilateral hearing loss. Under the relevant laws and regulations, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). In general, service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain conditions, including sensorineural hearing loss, may be service-connected on a presumptive basis even in the absence of a direct nexus. See 38 C.F.R. §§ 3.307 (a), 3.309(a). Generally, such a condition must have manifested to a compensable degree within one year following separation from service. 38 C.F.R. § 3.307 (a)(3). Generally, veterans serving during periods of war are presumed to be in sound condition when enrolled for service, except for any defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are to be considered as "noted." 38 C.F.R. § 3.304 (b). The presumption of soundness can be rebutted if clear and unmistakable evidence demonstrates that the disease or injury existed prior to service and was not aggravated by such service. 38 U.S.C. § 1111. If the VA is unable to rebut either prong of the presumption, the disease or injury that manifested in service is deemed incurred in service. Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). For purposes of VA compensation, impaired hearing will be considered to be a disability 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. Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. In his May 2016 notice of disagreement, the Veteran asserted that he has developed bilateral hearing loss as a result of noise exposure incurred while with the 5th and 77th artillery in the ammo section. He explained he was responsible for taking ammo to the firing range for headquarters, and due to his section qualifying last he was exposed to the noise of not only his round, but all the other rounds of the sections that went before him. He described these experiences as deafening. The Veteran's December 1965 entrance examination notes "improvement of hearing" and rates the Veteran's hearing as a "2" under the PULHES physical profile. The December 1965 entrance examination observes the following audiometric thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 5 N/A 15 LEFT 15 10 5 N/A 20 The Board notes that these thresholds do not meet the definition of a hearing loss disability under 38 C.F.R. § 3.385. It is unclear, however, whether these readings were using the American Standards Association (ASA) units or International Standards Organization-American National Standards Institute (ISO-ANSI) units. In any event, the Veteran's entrance examiner noted that his hearing was defective. The Veteran's hearing was tested again at separation in March 1968. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 0 0 N/A 15 LEFT 0 5 0 N/A 5 No hearing loss abnormality was noted. The Veteran received a "1" on his PULHES physical profile. In the accompanying report of medical history, the Veteran explicitly denied having ever experienced hearing loss. The Veteran underwent a VA examination in December 2014. The examiner diagnosed the Veteran with bilateral sensorineural hearing loss, observing the following audiometric thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 35 40 40 45 45 LEFT 40 45 60 55 45 This examiner also found speech discrimination scores of 92 in the right ear, and 90 in the left. The Board therefore finds that the Veteran has a current disability. The Board notes that the Veteran credibly asserts that he was exposed to noise while with the 5th and 77th artillery in the ammo section. The Veteran's military records show he served with the 5th and 77th artillery. The Board therefore finds it at least as likely as not that the Veteran was exposed to significant noise in service. The December 2014 examiner opined that it was less likely than not that the Veteran's bilateral hearing loss was incurred in or a result of his active-duty service. This opinion was based on the rationale that while contributions from diet, disease, medication, aging, and work or recreational noise cannot be ignored, the military medical records contain no reliable evidence to indicate an onset of hearing loss during, or shortly after the period of active duty. It was further opined that a delayed onset of noise-induced hearing loss is not supported by medical research or clinical experience. The Board remanded this issue for an addendum opinion considering whether the Veteran's pre-existing hearing disability was aggravated by service which was provided in September 2020 by a separate examiner. This examiner opined that the Veteran's preexisting hearing disability was not aggravated during service. The rationale explained that according to the Department of Defense standards the Veteran was given a H2 at enlistment, and rated H1 upon separation showing improvement in both ears. In consideration of this, and the raw audiological data, there is no objective evidence indicating permanent auditory damage due to conceded in-service noise. In response to the Veteran's contention, the examiner explained that outside the Veteran's report that his examination was not completed correctly, there is no evidence corroborating this report. Further, the examiner explained that medical evidence does not indicate continuity of care for hearing loss from service until the time of the Veteran's claim, some forty years later. The Veteran's hearing was explicitly noted to be defective at his December 1965 entrance examination, and as such the presumption of soundness does not apply. Service connection based upon aggravation may be granted if the evidence establishes that hearing loss was at least as likely as not aggravated by service. The Board finds that the evidence weighs against a finding that the Veteran's hearing loss was aggravated by service. Based on the September 2020 VA examiner's finding of improvement in hearing from entrance to separation based on the raw audiological data and the Veteran's higher PULHES rating for hearing, the Board concludes that the Veteran's bilateral hearing loss was less likely than not aggravated by such service. The examiner's opinion is consistent with service treatment records which show that hearing levels were not worsened by service but in fact improved. While the Veteran asserts that his hearing was affected during service, this assertion is less probative than the contemporaneous separation examination, which showed improved hearing levels, and was accompanied by an assertion by the Veteran that he had never experienced hearing loss. The Board acknowledges the Veteran's contention that results showing hearing loss upon induction were inaccurate. However, because the condition was noted on the enlistment examination, and the PULHES test scored the Veteran's hearing at "2," the presumption of sound condition is not applicable. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). For these reasons, the Board finds that the evidence weighs against a finding that the Veteran's hearing loss was aggravated by service. (Continued on the next page) The Board has considered the doctrine of reasonable doubt but finds that it is not applicable because the balance of the evidence of record is against the Veteran's claim. 38 U.S.C. § 5107. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Russell, Tangela 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.