Citation Nr: 21009130 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 18-16 563 DATE: February 19, 2021 ORDER Entitlement to service connection for right ear otosclerosis is granted. Entitlement to service connection for right ear hearing loss is granted. FINDINGS OF FACT 1. The Veteran’s right ear otosclerosis was incurred in service. 2. Right ear audiological abnormalities were noted on the enlistment examination; the presumption of soundness therefore did not attach to the Veteran's right ear hearing loss. 3. The Veteran's right ear hearing loss increased in severity during service. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear otosclerosis are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for right ear hearing loss are met. 38 U.S.C. §§ 1111, 1131; 38 C.F.R. § 3.303, 3.304(b), 3.306, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Army from June 2004 to April 2012. The Veteran is a Gulf War Era Veteran. This matter is before the Board on appeal from an April 2015 rating decision issued by the Department of Veterans Affairs (VA) RO in Indianapolis, Indiana. The Veteran appeared before the undersigned Veterans Law Judge at a hearing in February 2021. Service Connection 1. Entitlement to service connection for right ear otosclerosis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Establishing direct service connection generally requires competent evidence of: (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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Board finds that the evidence of record supports a grant of service connection for the Veteran’s right ear otosclerosis. First, there is evidence of a current disability. A March 2015 VA examination confirmed that the Veteran had a diagnosis of otosclerosis. See 38 C.F.R. § 3.303(a); see also Shedden, 381 F.3d at 1163. Moreover, the evidence demonstrates an in-service event, insofar as the Veteran underwent ear surgery in 2005, while in service, that was accompanied by surgical complications requiring immediate repair. See 38 C.F.R. § 3.303(a); see also Shedden, 381 F.3d at 1163; Service Treatment Records, dated April 2009. Third, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s current right ear otosclerosis was incurred in service or is causally related to service. In that regard, the law is clear. Pursuant to the “benefit-of-the-doubt” rule, where there is “an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter,” the Veteran shall prevail upon the issue. 38 U.S.C. § 5107. The Board notes that the first instance of a diagnosis of otosclerosis in the record was in July 2005 service treatment records; the Veteran’s entrance evaluation found that, while the Veteran’s right ear demonstrated some audiological findings consistent with hearing loss, the ear anatomy had no abnormalities. See 38 C.F.R. §§ 3.304(b), 3.385; see also Service Treatment Records, dated July 2005, January 2004. As such, the evidence is in support of the Veteran’s right ear otosclerosis being incurred in service. Inasmuch as there is evidence against the claim, notably the March 2015 VA opinion that found that it was less likely as not that the Veteran’s otosclerosis was due to military service, the examiner did not consider or address the normal ear findings in the Veteran’s enlistment examination; as such, this opinion is afforded limited probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Upon weighing the evidence of record, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s right otosclerosis was incurred in service. The Board therefore concludes that, with the benefit of the doubt resolved in the Veteran’s favor, a grant of service connection for right ear otosclerosis is warranted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (“[T]he ‘benefit of the doubt’ standard is similar to the rule deeply embedded in sandlot baseball folklore that ‘the tie goes to the runner’.... [I]f... the play is close, i.e., ‘there is an approximate balance of positive and negative evidence,’ the veteran prevails by operation of [statute].”). 2. Entitlement to service connection for right ear hearing loss As outlined above, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted, however, for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. §§ 1110, 1131. A Veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. See 38 U.S.C. §§ 1111, 1113; 38 C.F.R. § 3.304(b). A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306. "Clear and unmistakable evidence" is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of "clear and unmistakable evidence"). It is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." See Cotant v. West, 17 Vet. App. 116, 131 (2003) citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). A pre-existing disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of a disability. 38 C.F.R. § 3.306(a); see Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). A finding of aggravation is not appropriate in cases where the evidence specifically shows that the increase is due to the natural progress of the disease. Furthermore, temporary or intermittent flare-ups of a pre-existing disease during service are not sufficient to be considered aggravation of the disease unless the underlying condition, as contrasted to symptoms, worsens. See Jensen v. Brown, 4 Vet. App. 304, 306-7 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). The Veteran's January 2004 enlistment examination documented right ear hearing loss for VA purposes. 38 C.F.R. § 3.385. Accordingly, the evidence shows that the Veteran's right ear hearing loss pre-existed his period of active duty service. 38 C.F.R. § 3.304(b). As the presumption of soundness does not apply, the Board must now determine whether the Veteran's right ear hearing loss underwent a worsening during service. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306. The Board finds that the evidence supports that it did. In that regard, the law is clear. Pursuant to the “benefit-of-the-doubt” rule, where there is “an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter,” the Veteran shall prevail upon the issue. 38 U.S.C. § 5107. The Board notes the March 2015 VA examiner confirmed the presence of a threshold shift in the Veteran’s hearing in the right ear during service and, as such, found that the Veteran’s hearing loss was at least as likely as not caused by his service. Audiological readings obtained while the Veteran was in service also demonstrated a clear worsening during service. See Service Treatment Records, dated January 2010, September 2006, September 2005, January 2005, July 2004, January 2004. (Continued on the next page)   Upon weighing the evidence of record, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s right ear hearing loss was aggravated in service. The Board therefore concludes that, with the benefit of the doubt resolved in the Veteran’s favor, a grant of service connection for right ear hearing loss is warranted. See Gilbert, 1 Vet. App. at 55. ANTHONY C. SCIRÉ, JR. Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Trotter, 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.