Citation Nr: 21005298 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 15-42 910 DATE: February 1, 2021 ORDER Service connection for bilateral hearing loss is denied. FINDING OF FACT The Veteran’s preexisting hearing impairment did not increase in severity during service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss are not met. 38 U.S.C. § 1110, 1111, 5107; 38 C.F.R. § 3.102, 3.303, 3.304(b), 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1965 to December 1967. This matter is on appeal from a June 2014 decision of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2019, a videoconference hearing was held before the undersigned. A transcript of the hearing is in the record. The case was previously before the Board in October 2019 when it was remanded for further development. Bilateral Hearing Loss The Veteran contends that he is entitled to service connection for bilateral hearing loss. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303. Establishing service connection requires evidence of: (1) a current disability; (2) a disease, injury, or event in service; and (3) a causal link (nexus) between the claimed disability and the disease, injury, or event in service and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). For the purposes of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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. A Veteran is presumed to have been sound upon entry into active service, except as to conditions noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff’d 749 F.3d 1370 (Fed. Cir. 2014). In this case, there is a question as to whether the Veteran’s hearing impairment preexisted his military service, for reasons explained in greater detail below. The record reflects that the Veteran underwent an enlistment examination in September 1965. The Veteran contends that he did not have hearing impairment upon enlistment and that the audiometer malfunctioned during this examination. The examination report reflects multiple audiometry findings, including one that is crossed out, and an indication that an automatic audiometer was unavailable. A December 22, 1965 letter reflects that the Veteran was referred for a special audio examination which a separate audio consultation sheet indicates was completed on December 22, 1965, which is the day the Veteran entered service. The results of that audiogram are included on the September 1965 entrance examination report and reflect puretone thresholds above 40 decibels at 4000 Hertz in both ears. These results are included to the right of a notation that the Veteran was considered fit for military service on December 22, 1965. The audiometry results shown on the entrance examination report are the same as those reflected on the December 22, 1965 chart audiometry from the audio consultation which indicates the audiogram was based on a “good response” and contained “conclusive results.” The Veteran’s Record of Induction reflects that in September 1965, he was given a hearing profile of I, which indicates a normal hearing profile, while on December 22, 1965, he was given a hearing profile of 2, which indicates some defect that may require activity limitations. The Veteran has testified that there was an audiometry malfunction during his entrance examination and that his hearing was found not to be defective on the December 22, 1965 audiometry. The record supports the Veteran’s testimony that there were problems with the initial audiometry taken in September 1965, but the December 22, 1965 audiometry results indicate that they were conclusive, and these results were completed on the day the Veteran entered service and recorded on his entrance examination. Thus, the record reflects that he did have bilateral hearing loss by VA standards on entrance and that such was noted on his entrance examination. 38 C.F.R. § 3.385; McKinney v. McDonald, 28 Vet. App. 15 (2016).   In Wagner v. Principi, 370 F.3d 1089, 1096 (2004), the United States Court of Appeals for the Federal Circuit held 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. In that case, 38 U.S.C. § 1153 applies, and the burden falls on the Veteran to establish an increase in disability during service. If the presumption of aggravation attaches, the burden shifts to the government to show by clear and unmistakable evidence that there has been no increase in the severity of the preexisting condition or that any increase was the result of natural progression. Id; see also 38 C.F.R. § 3.306(b). Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered “aggravation in service” unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). Evidence of the Veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). Upon review of the record, the Board finds that the evidence does not establish that the Veteran’s preexisting hearing impairment experienced an increase in disability in service. First, the Board notes that prior to January 1, 1967, service department audiometric test results were reported in standards set forth by the American Standards Association (ASA). Since December 31, 1970, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). Between January 1, 1967 and December 31, 1970, there was variance regarding whether ASA standards or ISO-ANSI standards were used. Comparison of the two standards is set forth below, with ISO-ANSI results in parentheses. As discussed above, the Veteran was provided with an audiometric examination upon enlistment on December 22, 1965, which showed the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 0 (10) 10 (20) 50 (55) LEFT 5 (20) 5 (15) 10 (20) 45 (50) The Veteran was provided with a separation examination in September 1967 in which the Veteran reported no complaints of hearing impairment. The audiometric examination showed the following results: HERTZ 500 1000 2000 3000 4000 RIGHT -5 (10) -10 (0) -5 (5) 30 (35) LEFT -5 (10) 5 (15) 20 (30) 20 (25) In February 2020, VA obtained an opinion from an audiologist, who explained that the Veteran’s entrance and discharge audiograms both demonstrate hearing loss. She stated that there was not a significant threshold shift during the time the Veteran was in the military. The examiner noted that discharge thresholds demonstrated better hearing sensitivity. Thus, the Board finds that even when accounting for the conversion of the audiogram results from ASA to ISO-ANSI, the record does not reflect an increase in disability in service, as all but one of the frequencies either remained constant or decreased in severity. The Board acknowledges the Veteran’s statements provided during the hearing that he did not experience hearing problems upon enlistment and that noise exposure during service caused him to have hearing problems. The Board finds no reason to doubt the credibility or sincerity of the Veteran’s statements. However, while the Veteran is competent to report noticeable changes in his hearing which are readily observable, lay testimony generally cannot establish the precise degree of hearing loss with medical certainty. See, e.g., Washington v. Nicholson, 21 Vet. App. 191, 195 (2007) (stating that “as a layperson, the appellant is competent to provide information regarding the visible, or otherwise observable, symptoms of disability”). In this case, service treatment records contemporaneously document the degree of hearing impairment throughout service, and these audiometric results were obtained using precise clinical measurements. Thus, the Board does not assign significant probative value to the Veteran’s lay statements and finds that it does not establish that there was an increase in the severity of the disability during service. As the most competent and credible evidence of record does not show an increase in the severity of the Veteran’s preexisting hearing impairment during service, the presumption of aggravation does not attach. As such, a discussion of clear and unmistakable evidence to rebut the presumption of aggravation is not required. Wagner, 370 F.3d at 1096. Because the Veteran’s pre-existing disability was not aggravated by military service, entitlement to service connection must be denied.   In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. H. White, 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.