Citation Nr: 21015957 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 16-35 524A DATE: March 18, 2021 ORDER Entitlement to service connection for right ear hearing loss is denied. FINDING OF FACT The Veteran was noted to have defective hearing in the right ear upon entry into service. The preponderance of the evidence does not show that his right ear hearing loss was aggravated by service. CONCLUSION OF LAW The criteria for entitlement to service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Army from June 1979 to June 1982. He testified before the undersigned Veterans Law Judge (VLJ) at a traval Board hearing in October 2019. A transcript of the hearing is of record. Entitlement to service connection for right ear hearing loss. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). A veteran is presumed to have been in sound condition when examined, accepted and enrolled in service, except for defects noted at the time of entrance, 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. According to 38 C.F.R. § 3.304(b), the term “noted” denotes only such conditions that are recorded in examination reports. 38 C.F.R. § 3.304(b)(1); Crowe v. Brown, 7 Vet. App. 238 (1994). If a preexisting disorder 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 connection for aggravation of that disorder. On his entrance Report of Medical Examination audiogram dated in March 1979, it was noted that the Veteran had defective hearing in the right ear. Therefore, he is not presumed sound as to his right ear hearing loss and has the burden of proving aggravation. At the time of his April 2014 and September 2017 VA examinations, the Veteran did not meet the threshold for a hearing loss disability in the right ear for VA purposes. However, on VA examination in January 2021, a diagnosis of right ear hearing loss was confirmed. Therefore, the first element of service connection has been met. In addition, the RO has already conceded that the Veteran was likely exposed to acoustic trauma during service. As such, the second element of service connection has also been met. Given that the Veteran’s right ear hearing loss preexisted service, the question before the Board is whether the Veteran’s right ear hearing loss was aggravated beyond its normal progression as a result of service. The preponderance of the evidence weighs against the Veteran’s claim. It is worth noting that in the July 2016 Statement of the Case (SOC), the RO stated “the examiner provided an opinion that linked your right ear hearing loss to in-service acoustic trauma, but service connection cannot be granted as your right ear hearing loss does not meet the above definition of hearing loss for VA purposes.” However, this is inaccurate. The Board has thoroughly reviewed the April 2014 VA examination report. This report provided a positive nexus for the Veteran’s tinnitus as well as his left ear hearing loss. However, the examination report clearly states “the Veteran does not qualify for a hearing loss in the right ear according to VA standards. The Veteran does qualify for a hearing loss in the left ear . . . The rationale is that the Veteran reported an MOS as tactical wire operating specialist. The Veteran has been exposed to loud noises from weapons, and explosions . . . The claimant fired weapons with the left hand.” Thus, the examination report does not weigh in favor or against the Veteran’s claim. Similarly, on VA examination in September 2017, the examiner could not confirm a diagnosis of right ear hearing loss. As such, no medical opinion was rendered. The Board notes that although the April 2014 VA examination report provided a positive nexus for the Veteran’s left ear, the opinion was based, at least in part, on the fact that the Veteran fired weapons in his left hand. This suggests that a positive nexus was provided because he had acoustic trauma from weapons that were fired very close to his ear. Therefore, its rationale cannot be applied to the Veteran’s right ear hearing loss now that a disability for VA purposes has been established. In August 2020, the Board remanded the Veteran’s claim for further development. The Board directed the RO to schedule the Veteran for a VA examination. The Veteran underwent an in-person VA examination in January 2021. As noted above, the examiner confirmed the Veteran has right ear hearing loss for VA purposes. After thoroughly reviewing the Veteran’s entire claims file and performing a thorough in-person examination, the examiner stated that the Veteran’s right ear hearing loss was not aggravated by service. As rationale, the examiner explained: Veteran’s enlistment exam dated 3/16/1979, showed a mild hearing loss. Reserve audio dated 9/22/1985, after separation from active duty, showed hearing thresholds were within normal limits. According to the American College of Occupational Medicine Noise and Hearing Conservation Committee, “a noise induced hearing loss will not progress once it is stopped.” C&P exam dated 4/17/2014 performed by Amos, M.S., showed a mild hearing loss in the Veteran’s right ear from 3000-8000 Hz. However, this hearing loss did not meet requirements to be considered a disability by VA standards. This can occur when the auditory thresholds are greater than 25 dB at one or more frequencies in the 500-4000 Hz range. Today’s audiogram revealed a mild noise notch between 3000 and 6000 Hz. Veteran reports over 10 years of noise induced occupational noise throughout his civilian life. Due to normal hearing throughout service, noise experienced in civilian life, as well as the hearing loss being within the normal progression for age, it is my opinion that the Veteran’s hearing loss . . . [was not] aggravated beyond normal progression [by his] military service. The Board finds this opinion highly probative. The examiner provided a clear conclusion with supporting rationale and cited to medical literature in support of her opinion. She explained that noise induced hearing loss will not progress once it is stopped. On discharge, the Veteran’s hearing acuity had not decreased and his Reserve records after separation show hearing thresholds were within normal limits. Further, the Veteran’s current level of hearing loss is consistent with his age. Given the Veteran’s reports of over 10 years of occupational noise, the evidence weighs against finding that his right ear hearing loss was aggravated by service. The Board acknowledges the Veteran’s lay statements and his sincere belief that his right ear hearing loss is related to service. He is competent to report a decrease in hearing acuity. However, he has not demonstrated that he has the necessary medical expertise to provide an opinion linking his current right ear hearing loss to service. Therefore, his opinions on the matter lack probative weight. The preponderance of the evidence weighs against the Veteran’s claim. Accordingly, service connection for right ear hearing loss must be denied. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Martha R. Luboch, 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.