Citation Nr: 21007781 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 16-22 455 DATE: February 10, 2021 ORDER Entitlement to service connection for right ear hearing loss is denied. REMANDED Entitlement to service connection for left ear hearing loss is remanded. FINDINGS OF FACT 1. Right hearing loss was noted on entry into active service. 2. The competent evidence of record does not show that the preexisting right ear hearing loss increased in severity during active duty. CONCLUSION OF LAW Right ear hearing loss was not incurred in or aggravated by active duty. 38 U.S.C. §§ 1110, 1111; 38 C.F.R. §§ 3.102, 3.303, 3.306, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Army from February 1965 to February 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran’s claim initially claim to the Board as a claim for service connection for bilateral hearing loss. The Board reopened the claim and remanded it for further development in April 2020. At this time, the Board finds that the issue of entitlement to service connection for right ear hearing loss can be finally adjudicated. However, the issue of entitlement to service connection for left ear hearing loss requires additional development. Therefore, the Board will bifurcate the hearing loss claim into separate issues and adjudicate them separately. See Locklear v. Shinseki, 24 Vet. App. 311 (2011) (bifurcation of a claim is within VA’s discretion); Tyrues v. Shinseki, 23 Vet. App. 166, 178-79 (2009), aff’d, 631 F.3d 1380 (Fed. Cir. 2011) (holding that it is permissible to bifurcate a claim and to adjudicate the distinct theories of entitlement separately.). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). Entitlement to service connection for right ear hearing loss. The Veteran contends that his hearing loss is related to his active military service. For the reasons that follow, the Board finds that service connection for right ear hearing loss is not warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, to establish service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307, so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may be established for chronic diseases, to include sensorineural hearing loss, manifesting to a certain degree within a year after service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). Additionally, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Where a condition is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder but may bring a claim for service-connected aggravation of that disorder. In such claims, the veteran has the burden of showing that there was an increase in disability during service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If the claimant meets his burden of demonstrating an increase in service, the presumption of aggravation attaches, and the disability is presumed to have been aggravated in service. The burden then shifts to the Secretary to rebut that presumption. Horn v. Shinseki, 25 Vet. App. 231, 234 (2012); 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. Regarding in-service aggravation, the Board notes that 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. 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). Furthermore, for VA purposes, 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. Additionally, VA considers the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Turning to the evidence of record, the Veteran underwent an in-service audiological evaluation at enlistment in February 1965 at which time auditory thresholds were recorded. Service department audiometric test results dated prior to January 1, 1967, are presumed to have been reported in units pursuant to standards set forth by the American Standards Association (ASA), unless otherwise indicated. Where necessary to facilitate data comparison for VA purposes in the decision below, including under 38 C.F.R. § 3.385, audiometric data originally recorded using ASA standards will be converted to International Standards Organization-American National Standards Institute (ISO-ANSI) standards by adding between 5 and 15 decibels to the recorded data as follows: Hertz 250 500 1000 2000 3000 4000 6000 8000 add 15 15 10 10 10 5 10 10 The February 1965 audiometric test reveals pure tone thresholds for the right ear (ISO or ANSI units after conversion are in parentheses), in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 Right -10 (5) -10 (0) -5 (5) Not recorded 40 (45) The foregoing audiometric data, both prior to and after conversion to ISO-ANSI units, shows hearing loss for VA purposes in the right ear. As right ear hearing loss was noted at entrance, the Veteran is not presumed sound, and the remaining inquiry is whether the preexisting right ear hearing loss was permanently aggravated during service. The Veteran’s service treatment records (STRs) are silent for any complaints, treatment, or diagnoses related to hearing loss. On his Report of Medical History at separation, the Veteran reported “no” to hearing loss. The Veteran underwent another audiological evaluation at separation in December 1967. It is unclear whether such thresholds were recorded using ASA units or ISO-ANSI units. For service audiological evaluations conducted between January 1, 1967 and December 31, 1970, VA protocol is to consider the data under both ASA and ISO-ANSI standards. The audiometric test reveals that the Veteran’s pure tone thresholds (ISO or ANSI units after conversion are in parentheses) for the right ear, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 0 (15) 5 (0) 0 (10) Not recorded 0 (5) After review of the evidence, the Board finds that the Veteran’s preexisting right ear hearing loss was not aggravated by service. The Veteran’s right ear hearing was normal at separation. When compared with his service entrance audiology examination, the Veteran’s service separation audiology examination results indicate that his preexisting right ear hearing loss did not increase in severity during service. In fact, there was no hearing loss at 4000 Hz at separation; his hearing appears to have improved. Additionally, the Veteran denied experiencing hearing loss at separation. Because the weight of the evidence demonstrates no aggravation of preexisting right ear hearing loss by service, the presumption of aggravation does not apply, and therefore, the burden on VA to rebut the presumption does not arise. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306. The Board acknowledges that the Veteran indicated that he began to experience “hearing distortion” in 1966 during service. See March 2015 Veterans Application for Compensation or Pension. However, the Veteran also has indicated that he did not experience hearing loss until after service. See March 2020 Informal Hearing Presentation (indicating that the Veteran experienced late-onset hearing loss); January 2021 Informal Hearing Presentation. Furthermore, the Board finds that the evidence contemporaneous to his service is more reliable in regard to the state of his health. As noted above, the Veteran reported “no” to any ear trouble, including hearing loss, on his Report of Medical History at separation. Contemporaneous evidence as to his then-existing physical condition, such as his medical examination report at discharge (as opposed to his later statements of memory or belief to prove the fact remembered or believed) is particularly probative. See Fed. R. Evid. 803(3); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (providing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate). The Board also acknowledges the private opinions provided by Dr. D.S. and Dr. R.C. However, these opinions only relate to whether the Veteran’s hearing loss is directly related to service and do not consider that his right ear hearing loss preexisted his military service. Accordingly, they are afforded no probative weight. Regarding right ear hearing loss, at this time, the Board acknowledges the April 2020 remand directives. However, the Board notes that a remand is a preliminary order and is nonprecedential. 38 C.F.R. § 20.1303. The Board also notes that the April 2020 directives only relate to whether the Veteran’s hearing loss was directly related to service, and as explained above, his right ear hearing loss cannot be service connected on a direct basis. 38 U.S.C. § 7104(c). Accordingly, the Board finds no prejudice to the Veteran in proceeding with a decision as to right ear hearing loss. See generally, Soyini v. Derwinski, 1 Vet. App. 540 (1991) (remand not required when it would impose unnecessary burdens on VA adjudication system with no benefit flowing to the claimant). In sum, right ear hearing loss was noted at service entrance, and the preponderance of the evidence weighs against a finding that the preexisting right ear hearing loss was permanently aggravated by the Veteran’s active service. Accordingly, the claim must be denied. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). REASONS FOR REMAND Entitlement to service connection for left ear hearing loss. The Veteran seeks service connection for his current hearing loss. The Board finds that a remand is warranted in order to ensure substantial compliance with the Board’s prior remand. The Board remanded the Veteran’s claim in April 2020 in order to obtain a new etiology opinion. In providing the opinion, the Board requested the examiner to reconcile his/her opinion with the positive opinions provided by Dr. D.S. and Dr. R.C. The Board also converted the Veteran’s in-service audiometric results from ASA to ISO-ANSI units and indicated that the examiner should consider the converted thresholds. An opinion was obtained in May 2020. However, a review of the opinion indicates that the examiner did not consider the converted thresholds or consider the private opinions provided by Dr. D.S. and Dr. R.C. Accordingly, a remand is warranted in order to obtain a new opinion that complies with the Board’s prior remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Obtain a VA medical opinion regarding the etiology of the Veteran’s left ear hearing loss from a qualified medical professional. The need for a physical examination is left to the discretion of the VA examiner. The examiner must review the entire claims file and a copy of this Remand. The examiner must opine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s left ear hearing loss had its onset in, or is otherwise related to, active service. In so opining, the examiner should consider the February 1965 audiological results in the Veteran’s service treatment records under ISO units and the December 1967 audiological results under both ASA and ISO units. To assist the examiner, the converted thresholds to ISO units are below. February 1965 results: HERTZ 500 1000 2000 3000 4000 LEFT 15 0 0 Not recorded 30 December 1967 results: HERTZ 500 1000 2000 3000 4000 LEFT 20 10 10 Not recorded 5 In offering the opinion, the examiner also should: a) Consider the October 2014 and May 2015 private opinions by Dr. R.C. and Dr. D.S. b) If the examiner finds that the Veteran’s hearing loss is more likely than not related to post-service noise exposure, he/she should explain why that is so.   A complete rationale must be provided for all opinions expressed. The rationale must consider and discuss the pertinent evidence of record, to include the Veteran’s lay statements. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Mortimer, 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.