Citation Nr: 21071226 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 17-37 680 DATE: November 30, 2021 ORDER Whether new and material evidence has been received to reopen service connection for bilateral hearing loss is granted. Entitlement to service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. The July 2008 rating decision, which denied service connection for bilateral hearing loss, became final, as the Veteran did not perfect an appeal of the decision or submit new and material evidence within a year of the rating decision. 2. Since the July 2008 rating decision, the Veteran has submitted additional evidence that is new and material to raise a reasonable possibility of substantiating the Veteran's claim for service connection. 3. The Veteran's bilateral hearing loss pre-existed his active duty service, and the probative evidence of record does not show that it increased in severity during a period of active-duty service. CONCLUSIONS OF LAW 1. The July 2008 rating decision denying service connection for bilateral hearing loss became final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 20.302, 20.1103 2. New and material evidence has been received to reopen service connection for bilateral hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 101, 1131, 1132, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Navy from December 2002 to June 2003, with additional Reserves service. NEW AND MATERIAL EVIDENCE Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. § 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. The Veteran is seeking to reopen service connection for bilateral hearing loss. The claim was previously denied in a July 2008 rating decision due to there being no evidence of the condition being related to his active-duty service. The rating decision became final, as the Veteran did not appeal the decision or submit new and material evidence within one year of the rating decision. Since the prior final decision, the Veteran has been provided a VA examination and submitted additional medical records. The Board finds this evidence is new, as it has not been part of the record before, and material, as it pertains to a factor in possibly substantiating the claim for service connection, specifically, whether his disability is related to his active-duty service. Therefore, the evidence is to be considered new and material, and the claim is reopened. SERVICE CONNECTION Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In order to establish service connection, the record must show competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d, 1362, 1366 (Fed. Cir. 2009). When considering such a claim for service connection, the Board must consider on a case-by-case basis, the competence and sufficiency of lay evidence offered to support a finding of service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 Fed. Cir. 2007)). The mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Active service includes any period of ACDUTRA during which the individual was disabled from a disease or an injury incurred in the line of duty, or a period of inactive duty training during which the veteran was disabled from an injury incurred in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). Further, ACDUTRA includes full-time duty in the Armed Forces performed by the Reserves for training purposes. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c). Inactive duty training (INACDUTRA) includes duty, other than full-time duty, prescribed for the Reserves. 38 U.S.C. § 101(23)(A). However, the advantages of certain evidentiary presumptions - such as the presumption of sound condition at entrance to service, the presumption of aggravation during service of preexisting diseases or injuries which undergo an increase in severity during service, and the presumption of service incurrence for certain diseases, which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service - do not extend to those who claim service connection based on a period of ACDUTRA or INACDUTRA. Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995). A pre-existing 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 (2012); 38 C.F.R. § 3.306 (a) (2020). In deciding a claim based on aggravation, the question turns on whether there has been any measurable worsening of the condition during service, and then on whether such worsening constitutes an increase in disability. Browder v. Brown, 5 Vet. App. 268, 271 (1993); Hensley v. Brown, 5 Vet. App. 155, 163 (1993). Temporary intermittent flare ups of a pre-existing condition during service are not sufficient to be considered aggravation unless the underlying condition, as contrasted to symptoms, has worsened. Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. at 296-97. In deciding a claim based on aggravation, the question turns on whether there has been any measurable worsening of the condition during service, and then on whether such worsening constitutes an increase in disability. Browder v. Brown, 5 Vet. App. 268, 271 (1993); Hensley v. Brown, 5 Vet. App. 155, 163 (1993). Temporary intermittent flare ups of a pre-existing condition during service are not sufficient to be considered aggravation unless the underlying condition, as contrasted to symptoms, has worsened. Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. at 296-97. Entitlement to Service Connection: Bilateral Hearing Loss The Veteran contends that his bilateral hearing loss is related to his active-duty service, to include being permanently aggravated by his active-duty service. As initial matter, the Board acknowledges that the Veteran has been diagnosed with bilateral hearing loss. However, his records show the Veteran was diagnosed with high frequency hearing loss during a routine Reserves examination in June 1996, which was not during a period of active duty. Further, his active-duty entry examination in January 2003 also showed elevated decibel readings in several Hertz thresholds. Therefore, the Board finds the presumption of soundness does not attach and the issue turns upon whether the Veteran's pre-existing condition was permanently aggravated by his active-duty service. See 38 U.S.C. § 1153; 38 C.F.R. §§ 38 C.F.R. § 3.304(b), 3.306 (a). In April 2017, the Veteran attended a VA examination. The examiner rationalized that the Veteran's left and right ear hearing loss were less likely as not caused by or a result of an event in military service. The examiner rationalized that by 1996, the Veteran began exhibiting a mild hearing loss in 3000 Hz and 6000 Hz in the left ear, and in 6000 Hz in the right ear. The examiner noted that there were no audiograms shown prior to 1996, only whispered tests. The examiner further explained that the audiogram from 1996 was during his Reserves service, and not a period of active duty. The examiner explained that the Veteran's right ear continued to show a decrease in 6000 Hz from 1996 to 1999. The examiner explained that for his active-duty period from 2002 to 2003, the Veteran's right ear exhibited a hearing loss primarily for high frequencies. However, when audiograms are compared for this period of active duty, there are no significant changes in air conduction thresholds. Likewise, the Veteran's left ear showed mild hearing loss from 500-4000 Hz, moderate hearing loss at 6000 Hz, and moderately severe hearing loss at 8000 Hz in his entry examination for active duty. The examiner reiterated that when audiograms from entry to separation are compared, there are no significant changes from 500-6000 Hz in the left ear. The examiner then opined that the Veteran's bilateral hearing loss existed prior to service and was not aggravated beyond normal progression during his military service. For the right ear, the examiner rationalized that during the Veteran's active-duty service, there was high frequency hearing loss shown with no significant changes evidenced between 2002 and 2003. For the Veteran's left ear, the examiner rationalized that prior to the Veteran's active-duty service, the Veteran was shown to have mild hearing loss at 1000 Hz and 3000 Hz, and moderate hearing loss at 6000 Hz, and there were no significant changes for his left ear during his active-duty service. The Board notes that the Veteran has provided no evidence that relates the Veteran's bilateral hearing loss to his active-duty service, to include whether his hearing loss was aggravated by his service. Therefore, the Board finds that the April 2017 VA opinion to be of significant probative value in determining that the Veteran's bilateral hearing loss is a pre-existing condition that was not caused by his active-duty service nor was it aggravated by his active service. The Board notes that the probative value of medical opinion evidence is based on the medical experts' personal examination of the patient, their knowledge, and skill in analyzing the data, and their medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Here, the reviewing physician's opinion was based on review of the Veteran's lay contentions, his reported medical history, examination of the Veteran, and review of the medical evidence of record. Further, a complete and thorough rationale was rendered for the opinion provided and is consistent with the medical evidence of record. The Board acknowledges the Veteran's assertions that his bilateral hearing is related to or aggravated by service. The Board also recognizes that lay persons are competent to provide medical opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, although the Veteran is competent to report his symptoms, any opinion regarding whether any hearing disability is related to his service, to include as being permanently aggravated by service, requires medical expertise that the Veteran has not demonstrated since hearing disabilities can have many causes. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (2007). Further, the Board again notes that the Veteran was diagnosed with high frequency hearing loss in June 1996, which was not a documented period of active duty, and his active-duty audiograms showed the Veteran did not experience a change in thresholds. In light of the foregoing, the Board concludes that the preponderance of evidence is against the claim and the benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Negron, 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.