Citation Nr: 21012852 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 16-58 814A DATE: March 5, 2021 ORDER Entitlement to service connection for left ear hearing loss is granted. REMANDED Entitlement to a compensable initial evaluation for right ear hearing loss is remanded. FINDING OF FACT The Veteran’s preexisting left ear hearing loss was aggravated by active service. CONCLUSION OF LAW The criteria for entitlement to service connection for left ear hearing loss are met. 38 U.S.C. §§ 1110, 1111, 1153, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from December 1965 to September 1967. The Veteran’s decorations include the Combat Infantryman Badge. The Veteran testified at a hearing before the undersigned in January 2021. A transcript of the hearing has been associated with the claims file. 1. Entitlement to service connection for left ear hearing loss. The Veteran contends that his preexisting left ear hearing loss was aggravated by his active service. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection generally requires evidence showing (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air 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. Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; Hensley v. Brown, 5 Vet. App. 155, 160-61 (1993). If a preexisting condition noted at entrance into service is not shown to have as likely as not increased in severity during service, the analysis stops and the claim is denied. Only if such condition is shown by an as likely as not standard to have increased in severity during service does the analysis continue. In such cases, the increase is presumed to have been due to service unless there is clear and unmistakable evidence that the increase during service was not beyond the natural progression of the condition. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Service connection may not be established for disability due to impaired hearing unless the auditory threshold in any of the frequencies 500, 1000, 2000, 3000 or 4000 Hertz is 40 decibels or greater; or the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000 or 4000 Hertz are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran currently has a left ear hearing loss disability pursuant to 38 C.F.R. § 3.385. See VA Examination Report, May 2019. Service treatment records show that the Veteran had left ear hearing loss upon examination at entrance to service. Left ear hearing loss was specifically listed as a defect and the Veteran’s PULHES profile was marked a “2” in the H (for hearing) category. Upon examination at entrance to service in September 1965, left ear hearing acuity levels were 50 decibels, 50 decibels, 70 decibels, 65 decibels, and 65 decibels at 500, 1000, 2000, 3000, and 4000 Hertz, respectively. After conversion from American Standards Association (ASA) units to the International Standards Organization-American National Standards Institute (ISO-ANSI) units, due to the examination being performed prior to October 1967 and no indication of the units reported, the results are 65 decibels, 60 decibels, 80 decibels, 75 decibels, and 70 decibels at 500, 1000, 2000, and 4000 Hertz, respectively. As there was a preexisting left ear hearing loss noted on enlistment, the question for the Board is whether the Veteran’s preexisting left ear hearing loss increased in severity during service. If so, the next question is whether there is clear and unmistakable evidence that the increase was not beyond its natural progression as a result of service. Service treatment notes indicate that during service the Veteran’s hearing acuity was considered and the Veteran’s hearing profile was increased from H2 to H3. On separation examination, the Veteran had a hearing profile of H2. Audiometric testing at separation in September 1967 showed left ear hearing acuity levels of 80 decibels, 75 decibels, 40 decibels, and 95 decibels at 500, 1000, 2000, and 4000 Hertz, respectively. After conversion from ASA units to ISO units the results are 95 decibels, 85 decibels, 50 decibels, and 100 decibels at 500, 1000, 2000, and 4000 Hertz, respectively. As such, there was an increase in the hearing thresholds in three of the four tested frequencies at separation. The Board finds that it is at least as likely as not that the Veteran’s preexisting left ear hearing loss increased in severity during service. The presumption of aggravation attaches. In August 2014, a VA examiner concluded that the Veteran’s left ear hearing loss was not aggravated beyond normal progression in military service, but did not provide a rationale. The Board affords that opinion inadequate. In May 2018 a private provider found that the Veteran’s left ear hearing loss worsened in service from severe to profound, but the examiner did not indicate whether that inservice worsening was beyond normal progression. In May 2019, a VA examiner concluded that the Veteran’s preexisting left ear hearing loss was not aggravated beyond normal progression in military service. The rationale was that the Veteran reported deafness in the left ear since childhood and that hearing thresholds in the left ear were stable from entrance to exit from service. However, the examiner did not consider the change in the Veteran’s hearing profile in service, provide any rationale for the finding that the threshold shift was not greater than normal variability, explain how hearing was stable during service when there was a hearing level shift from entrance to separation from service, or take into account the private statement indicating worsening in service. In an October 2020 statement, a private physician noted that the Veteran had hearing loss in the left ear when entered service and that there was progression of that hearing loss was documented until his discharge. The worst of the hearing loss occurred in the 3 and 4000 Hertz which was consistent with noise induced damage. The provider characterized the drop at 3 and 4000 Hertz as “significant.” The Board finds that entitlement to service connection for left ear hearing loss is warranted. The Veteran’s preexisting left ear hearing loss increased in severity during service and there is no clear and unmistakable evidence to rebut the presumption that the hearing loss worsened beyond natural progression during active service. The evidence is at most in equipoise on that point. Service treatment records show that the Veteran’s left ear hearing loss worsened during service and his service personnel records show he was exposed to loud noise during service (Combat Infantryman Badge). The VA opinions are afforded little probative value. Although the private provider did not specifically say that the hearing loss was aggravated beyond the natural progression, the provider noted that there was a “significant” drop at 4000 Hertz and that the findings were consistent with noise-induced damage. As the presumption of aggravation has not been rebutted, service connection for left ear hearing loss based on aggravation is granted. REASONS FOR REMAND 1. Entitlement to a compensable initial evaluation for right ear hearing loss is remanded. Implementation of the above grant of service connection for left ear hearing loss will impact the decision on the issue of entitlement to a compensable initial evaluation for right ear hearing loss. Therefore, the issues are inextricably intertwined. A remand of the claims for entitlement to a compensable initial evaluation for right ear hearing loss is required. In addition, in the October 2020 private treatment record, the Veteran was noted to have returned for a follow up for the issue of hearing loss and was to be scheduled for an audiogram follow up two weeks later. Complete treatment records from the private provider have not been obtained and associated with the claims file. As such, on remand, attempts must be made to obtain complete private treatment records regarding the Veteran’s hearing loss following receipt of adequate authorization. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all relevant private treatment providers and to complete a VA Form 21-4142 for all identified providers including Dr. G.H. Make two requests for the authorized records from all identified providers, including Dr. G.H., unless it is clear after the first request that a second request would be futile. 2. After the above development, and any additionally indicated development, has been completed, implement the decision granting service connection for left ear hearing loss and readjudicate the issue of entitlement to a compensable initial evaluation for right ear hearing loss. M.E. LARKIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Robert J. Burriesci, 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.