Citation Nr: 21015944 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 17-15 364 DATE: March 18, 2021 ORDER Entitlement to service connection for left ear hearing loss is denied. FINDING OF FACT The Veteran’s left ear hearing loss clearly and unmistakably preexisted his period of service and was not aggravated by his active service. CONCLUSION OF LAW The criteria for entitlement to service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 1975 until May 1978. In August 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This appeal has been before the Board on two prior occasions. Most recently, in June 2020, the matter was remanded to the agency of original jurisdiction (AOJ) in order to obtain an addendum medical opinion regarding the etiology of the Veteran’s left ear hearing loss. The Board finds there has been substantial compliance with its prior remand directives and will proceed to adjudication. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for left ear hearing loss The Veteran asserts that he has hearing loss in his left ear that is etiologically related to service. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be 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. To establish service connection, the evidence must show: (1) the existence of a present disability; (2) 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, 1166-67 (Fed. Cir. 2004).  Every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment, and was not aggravated by such service. 38 U.S.C. § 1132. In a case where there is no preexisting condition noted upon entry into service, the Veteran is presumed to have entered service in sound condition, and the burden falls to the government to demonstrate by clear and unmistakable evidence that (a) the condition preexisted service and (b) the preexisting condition was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (2004); 38 U.S.C. § 1132. To satisfy the second requirement for rebutting the presumption of soundness, the government must rebut a statutory presumption of aggravation by showing, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was due to the natural progression of the condition. Joyce v. Nicholson, 443 F. 3d 845, 847 (Fed. Cir. 2006). There is a question here as to whether the Veteran’s left ear hearing loss preexisted his active military service. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). The Veteran’s February 1975 enlistment examination showed an auditory threshold of 55 decibels at 4000 Hz; however, no specific defect was noted. Id. On the PULHES profile system, the Veteran’s hearing (H) was assigned a 1, reflecting a high level of fitness. See Odiorne v. Principi, 3 Vet. App. 456 (1992). Since no hearing defect was noted on enlistment examination, the Veteran is presumed sound. The claim was remanded for a medical opinion to address the presumption of soundness. Wagner, 370 F.3d at 1089. The Veteran was provided with a VA examination for hearing loss and tinnitus in February 2020. Addendum VA medical opinions were obtained in July and October 2020. The opinion provider concluded that the Veteran’s left ear hearing loss clearly and unmistakably preexisted his active service and supported that conclusion by stating that the Veteran’s auditory thresholds recorded in his entrance examination meet VA criteria for hearing loss. The October 2020 addendum opinion provider further stated that the Veteran’s hearing loss was not aggravated beyond normal progression while in service as evidenced by no significant decrease in hearing acuity when comparing the Veteran’s exit examination with the entrance examination. In support of that conclusion, the opinion provider noted that the Department of Defense criteria for “STS” is a shift of 15 decibels or greater at 1000, 2000, 3000, or 4000 Hz. or a shift of 10 decibels or greater in the average across 2000, 3000 and 4000 Hz and that the criteria was not met in this case. The Board agrees as the shift at 4000 Hz was less than 15 decibels (from 55 to 65) between enlistment and separation examinations. Because the opinion provider reached a clear conclusion based upon a review of the record, clinical data, and their own expertise, the Board assigns the October 2020 addendum opinion significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The VA medical opinions are clear and unmistakable evidence both that the left ear hearing loss existed prior to service and was not aggravated beyond the natural progression during service. The Board finds that both prongs of the presumption of soundness have been rebutted. Once this occurs, the claim of service connection cannot be substantiated. Service connection for left ear hearing loss is denied. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.D. Collins, 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.