Citation Nr: 21077247 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 17-51 005 DATE: December 29, 2021 ORDER Service connection for right ear hearing loss is denied. FINDING OF FACT The weight of the evidence is against finding that the Veteran's pre-existing right ear hearing loss was aggravated beyond its natural progression by his active duty. CONCLUSION OF LAW The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C. § 1131; 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 from April 1978 to July 1979. This matter was previously remanded by the Board of Veterans' Appeals (Board) for further evidentiary development. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). 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. 38 C.F.R. § 3.303(d). Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Also, service connection can be established through application of a statutory presumption for chronic diseases, like organic diseases of the nervous system, which includes hearing loss, when manifested to a compensable degree within a year of separation from service. 38 C.F.R. §§ 3.307, 3.309. If a chronic disease is not manifested to a compensable degree within a year of separation of service, then, generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303 (b). Furthermore, a layperson is competent to report on the onset and continuity of his or her current symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). The Veteran seeks service connection for right ear hearing loss. Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) 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 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. A May 2016 VA audiological examination report indicates that the Veteran has right ear hearing loss for VA purposes. Thus, the current disability prong of the claim has been met. Further, the Veteran contends that during service he was constantly exposed to thousands of rounds fired from rifles and machine guns. He states he was never offered, or was it even suggested that he wear, hearing protection. The Board notes that the Veteran's military occupational specialty was that of a Unit Supply Specialist. The Veteran also received a sharpshooter badge and expert badge with hand grenade bar. In this regard, the Board finds the Veteran's statements regarding noise exposure from weapons to be credible. Thus, exposure to hazardous noise while in service is conceded and the in-service event element has also been ment. The issue of whether the Veteran's current right ear hearing loss is related to his active service remains. Unfortunately, the Board finds, based on the evidence, that service connection for right ear hearing loss is not warranted. His service treatment records (STRs) indicate right ear hearing loss upon entry. Audiometric testing at entrance to service revealed values of 15 at 500 Hz, 15 at 1000 Hz, 10 at 2000 Hz, 10 at 3000 Hz, 70 at 4000 Hz, and 75 at 6000 Hz. As such, the Board finds that his right ear hearing loss existed prior to active duty. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has distinguished between those cases in which the preexisting condition is noted upon entry into service and those cases in which the preexistence of the condition must otherwise be established. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); Horn v. Shinseki, 25 Vet. App. 231, 234 (2012); see also 38 U.S.C. § 1111 (presumption of sound condition). "[I]f 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." Wagner, 370 at 1096; see also 38 U.S.C. § 1153; 38 C.F.R. § 3.306. In such claims, the Veteran has the burden of showing that there was an increase in disability during service to establish the presumption of aggravation. Wagner; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If the claimant meets his burden of demonstrating an increase in service, the disability is presumed to have been aggravated in service, and the burden is on the Secretary to rebut that presumption. Horn, 25 Vet. App. at 234; 38 U.S.C. § 1153; 38 C.F.R. § 3.306. To rebut that presumption, the Secretary must show, by clear and unmistakable evidence, that the worsening of the condition was due to the natural progress of the disease. Horn, 25 Vet. App. at 235, n. 6; 38 U.S.C. § 1153. Here, the Veteran's pre-existing right ear hearing loss was noted upon entry into service, and the Board reads the Veteran's lay contentions as competent assertions that his right ear hearing loss increased during active service. Upon separation, audiometric testing revealed values of 5 at 500 Hz, 5 at 1000 Hz, 5 at 2000 Hz, and 50 at 4000 Hz. Accordingly, the Veteran's threshold shifts between entrance and separation showed improvement of -10 at 500 Hz, -10 at 1000 Hz, -5 at 2000 Hz, and -20 at 4000 Hz. According to post-service medical records, the Veteran underwent VA audiological examination in May 2016, at which time the examiner diagnosed right ear sensorineural hearing loss. The examiner noted that the Veteran had right ear hearing loss prior to service and opined that his right ear hearing loss was not aggravated beyond normal progression in military service. The examiner stated, given the pre-existing hearing loss in the right ear upon entrance to the military and no evidence of aggravation therein, the Veteran's right ear hearing loss is less likely as not related to, or caused by, noise exposure in the military. Likewise, the examiner concluded that the Veteran's pre-existing hearing loss did not aggravate beyond natural progression in the military given the evidence that the hearing thresholds improved from the Veteran's entrance to his separation examinations. As such, the examiner opined that it less likely than not that the Veteran's hearing loss was caused or aggravated by his active service. Also included in the record is an August 2016 private medical opinion from Dr. K.J. indicating, based on the Veteran's history, clinical examination, and MRI of the brain, that his hearing loss and tinnitus are secondary to acoustic trauma incurred from military noise exposure. The Veteran was afforded VA examination in April 2017, at which time the examiner opined that it was less likely than not that the Veteran's right ear hearing loss was incurred in, or caused by, his service. Specifically, the examiner noted that the Veteran had a threshold improvement of 20 decibels at 4000 Hz from entrance to separation from service. In this regard, the examiner found that the evidence shows the Veteran did not demonstrate significant threshold shifts and did not, therefore, suffer a hearing injury while in military service. In October 2019, the Board remanded this matter to obtain a supplemental opinion to determine whether the Veteran's pre-existing right ear hearing loss increased in severity during service or was aggravated beyond its natural progression by his period of service. An August 2020 VA examiner noted that the Veteran had right ear hearing loss prior to service and opined that his right ear hearing loss was not aggravated beyond normal progression in military service. The examiner reasoned that the Veteran's right ear hearing loss did not progress during his military service. Further, comparing the entrance and separation audiograms revealed improvement at 4000 Hz during active duty. The examiner also suggested that presbycusis cannot be ruled out as a participatory cause of the degree of the Veteran's current hearing loss. As such, the examiner opined that it less likely than not that the Veteran's right ear hearing loss was caused by his active service. The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his\her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez, 22 Vet. App. 295 (2008). Here, while the August 2016 private opinion gives a positive nexus opinion between the Veteran's right ear hearing loss and his active service, the Board does not find the opinion probative. Specifically, the examiner did not provide an opinion regarding whether the Veteran's pre-existing right ear hearing loss increased in severity during service, or was due to the natural progress of the disease, as required by the standards of 38 U.S.C. § 1153 and 38 C.F.R. § 3.306(a). Instead, the examiner stated that he believes that both the Veteran's hearing loss and tinnitus are secondary to acoustic trauma incurred from military noise exposure. As this is the incorrect standard for pre-existing conditions, the Board assigns little probative weight to this opinion. In contrast, the Board finds that the August 2020 VA examination holds significant probative weight. The examiner based his opinion upon review of the medical records, consideration of Veteran's reported history, and audiological performance on examination. In doing so, he opined that the Veteran's right ear hearing loss was not aggravated beyond normal progression in military service since hearing loss did not significantly change during military service. Therefore, the Board finds this opinion to be significantly probative. In light of the probative evidence of record, the record does not support the claim for service connection for right ear hearing loss. In reaching this determination, the Board is mindful that all reasonable doubt is to be resolved in the Veteran's favor. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). However, because the preponderance of the evidence is against the claim, the claim must be denied. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. R. Bobb, Associate 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.