Citation Nr: 21009375 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 14-27 990A DATE: February 22, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT Bilateral hearing loss was noted at service entrance, and underwent aggravation during service beyond the natural progress of the disease. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1967 to July 1970. In a March 2018 decision, the Board denied entitlement to service connection for bilateral hearing loss. The Veteran appealed the Board’s decision to the U.S. Court of Appeals for Veterans Claims (Court). In a July 2019 Joint Motion for Remand (JMR), the Court vacated the Board’s decision regarding bilateral hearing loss. Entitlement to service connection for bilateral hearing loss. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). 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 or greater; where the auditory thresholds for at least three of these frequencies are 26 decibels or greater or when the Maryland CNC speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is from 0 to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). With regard to audiometric testing between January 1, 1967 and December 31, 1970, if it is unclear whether American Standard Association (ASA) units, or International Standards Organization/ American National Standards Institute (ISO-ANSI) units were used, VA protocol is to consider the data under both ASA and ISO-ANSI standards, whichever is more beneficial to the Veteran. ISO units are the current method for measuring hearing loss and used by VA to determine hearing loss disability under 38 C.F.R. § 3.385. Every veteran is presumed to have been in sound condition at entry into service except as to defects, infirmities, or disorders noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. 38 U.S.C. § 1111. If a condition is noted on an entrance examination report, the presumption of soundness never attaches - the only benefits that can be awarded are for aggravation of such condition by application of 38 U.S.C. § 1153 and 38 C.F.R. § 3.306. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The burden falls on the veteran to establish aggravation. Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). For service connection claims involving a preexisting injury or disease, 38 U.S.C. § 1153 provides that a preexisting injury or disease will be considered to have been aggravated by 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. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306(b). The Veteran contends that he has bilateral hearing loss due to acoustic trauma in service where he worked as an aircraft crew chief and was not provided any hearing protection. See July 2017 Board hearing transcript. The evidence shows that the Veteran has bilateral hearing loss as on the June 2013 VA examination he had 70 decibels at 4000 Hz in the right ear and 80 decibels at 4000 Hz in the left ear. The Veteran’s service treatment records (STRs) include a July 1967 enlistment examination dated on July 5, 1967 which shows the Veteran had bilateral hearing loss in both ears. The following audiometric testing results were noted: ASA Standard HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 20 45 LEFT 5 5 15 45 35   ISO-ANSI Standard HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 15 30 50 LEFT 20 15 25 55 40 Thus, as the Veteran had bilateral hearing loss on the enlistment examination on July 5, 1967 as he had 50 decibels at 4000 Hz in the right ear and 40 decibels at 4000 Hz in the left ear, the question thus for consideration is whether the preexisting bilateral hearing loss was aggravated during service. Another examination on July 25, 1967 shows the following audiometric testing results: ASA Standard HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 5 - 15 LEFT 10 5 15 - 45   ISO-ANSI Standard HERTZ 500 1000 2000 3000 4000 RIGHT 30 20 15 - 20 LEFT 25 15 25 - 50 A November 1967 examination shows the following audiometric testing results: ASA Standard HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 15 40 35 LEFT 0 -5 -5 20 50 ISO-ANSI Standard HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 25 50 40 LEFT 15 5 5 30 55 A February 1970 examination shows the following audiometric testing results: ASA Standard HERTZ 500 1000 2000 3000 4000 RIGHT -5 -10 -10 - 5 LEFT 0 -10 -10 - -10 ISO-ANSI Standard HERTZ 500 1000 2000 3000 4000 RIGHT 10 0 0 - 10 LEFT 15 0 0 - -5   A June 1970 separation examination shows the following audiometric testing results: ASA Standard HERTZ 500 1000 2000 3000 4000 RIGHT -5 -10 -10 - 5 LEFT 0 -10 -10 - 10 ISO-ANSI Standard HERTZ 500 1000 2000 3000 4000 RIGHT 10 0 0 - 10 LEFT 15 0 0 - 15 There are unfavorable opinions regarding the etiology of the Veteran’s bilateral hearing loss dated in June 2013 and in December 2019, however they need not be considered as the parties to the July 2019 JMR found the June 2013 opinion to be inadequate and the Board in the September 2020 remand found the December 2019 opinion to be inadequate. The Veteran submitted a private opinion dated in September 2013, however the examiner did not address whether his preexisting bilateral hearing loss was aggravated by service. There is a probative favorable opinion relating the Veteran’s bilateral hearing loss to service. In a VA opinion in September 2020, the examiner noted that on the enlistment examination in July 1967 the Veteran had bilateral hearing loss. A hearing exam completed a few days later showed normal hearing in the right ear from 250 to 4000 Hz and a moderate loss at 4000 Hz in the left ear. A hearing exam completed in November 1967 showed a mild loss at 3000 and 4000 Hz in the right ear and a moderate loss at 4000 Hz in the left ear. The examiner noted that the hearing exam dated February 1970 showed normal hearing in both ears from 500 to 4000 Hz. The separation hearing exam also showed normal hearing in both ears from 500 to 4000 Hz. The examiner acknowledged that the Veteran’s military occupational specialty was Aircraft Mechanic where he was exposed to loud jet engine noise without hearing protection as well as power and pneumatic tools. The examiner found that the entrance examination in July 1967 shows the Veteran had preexisting bilateral hearing loss. The examiner stated that the ANSI standards were not reported in service. While the examiner stated that there is no way to determine if the results were valid, the examiner opined that it is very unlikely for decibels at 4000 Hz to go to 10 decibels with a history of noise exposure and it was more likely that the in-service exams dated in February 1970 and June 1970 were not valid. The examiner opined that it is as least as likely as not that the Veteran’s underlying hearing loss demonstrated on the enlistment exam was aggravated by his noise exposure based on the fact that his military occupational specialty had a high probability of noise exposure and noise from jet engines is known to cause acoustic trauma resulting in hearing loss/tinnitus. As to evidence showing worsening of hearing acuity specifically at 3000 and 4000 Hz between the July and November 1967 in-service examinations, the examiner explained that exposure to loud noise can cause temporary threshold shifts and cochlear damage that can manifest years later. The shift in thresholds of 35 decibels to 50 decibels at 4000 Hz in the left ear and 20 to 40 decibels at 3000 Hz in the right ear could have been caused by acoustic trauma from noise exposure resulting in threshold shifts. The examiner reiterated that it is more likely than not that the exams dated in February 1970 and June 1970 were not valid. The Board finds the September 2020 opinion to be significantly probative as it was based on medical principles and applied to the facts of the case. Nieves Rodriquez v. Peake, 22 Vet. App. 295 (2008). Therefore, considering the totality of the evidence, the Board resolves all reasonable doubt in favor of the Veteran and grants service connection for bilateral hearing loss. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Mac, 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.