Citation Nr: 21016046 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 12-02 855 DATE: March 19, 2021 ORDER Service connection for right ear hearing loss is granted. FINDINGS OF FACT 1. The Veteran had active service from August 2 to August 30, 1985. 2. The Veteran’s right ear hearing loss clearly and unmistakably preexisted service but was not clearly and unmistakably not aggravated by service. 3. Right ear hearing loss is etiologically related to service. CONCLUSION OF LAW Right ear hearing loss was incurred in service. 38 U.S.C. §§ 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The matter comes before the Board on appeal of a May 2010 rating decision that denied service connection for bilateral hearing loss. The claim was readjudicated in October 2010 on the basis that new and material evidence had not been received. However, as the one-year period to appeal after the May 2010 decision had not expired, new and material evidence was not needed. Therefore, the original claim for service connection denied in the May 2010 decision is on appeal. The appeal was remanded by the Board in May 2014, March 2018, and October 2019. In November 2020, service connection was granted for hearing loss in the left ear but remained denied for the right ear. Hence, the appeal has returned to the Board for further appellate review. Turning to the applicable laws and regulations, service connection may be granted directly as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a current 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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). In addition, a veteran is presumed to be in sound condition upon entrance into service, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). If the disorder was not “noted” at the time of induction, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304; Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-03 (July 16, 2003). Specifically, the Court in Wagner held: When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran’s disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any “increase in disability [was] due to the natural progress of the” preexisting condition. 38 U.S.C. § 1153. If this burden is met, then the veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under section 1111, the veteran’s claim is one for service connection. See 38 C.F.R. § 3.322. Wagner, 370 F.3d at 1096. Hearing loss is considered a disability for VA purposes when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz (Hz) is 40 decibels or greater; when the thresholds for at least three of these frequencies 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. VA examination results from September 2020 do not show a hearing loss disability as defined by VA regulations in the right ear. However, for VA purposes, a disability need only be present during the period of the claim for the element of a current disability to be met. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this regard, at a July 2014 VA examination, testing results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 30 40 50 40 Therefore, a hearing loss disability in the right ear is currently shown for the purposes of this appeal. Thus, the first element of service connection – a current diagnosis – has been met. Next, the evidence reflects that the Veteran had conductive hearing loss in the right ear during service. Specifically, the disability was found during Physical Profile Board proceedings. As this assessment was made less than one week after the Veteran entered service, the Board will consider whether service connection is warranted on the basis of aggravation of a preexisting disability. Some loss of hearing acuity was found at the enlistment examination in February 1985, but the loss did not rise to the level of a hearing disability under VA regulations and no hearing disorder of the right ear was diagnosed at that time. Therefore, the Veteran is presumed to have been sound at the time she entered service. The presumption of soundness may be rebutted by clear and unmistakable evidence that the disorder preexisted service and was not aggravated by service. In this case, the right ear conductive hearing loss was documented as existing prior to service in the Physical Profile Board. In addition, the Physical Profile Board defined the disability as a loss of hearing acuity greater than 20 decibels at 4000 Hz. The February 1985 enlistment examination reflects a pure tone threshold of 25 at 4000 Hz. Thus, the right ear conductive hearing loss disability clearly and unmistakably preexisted service. However, the evidence does not establish that the disorder clearly and unmistakably was not aggravated by service. In this regard, the February 1985 enlistment audiogram yielded the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 5 15 25 An in-service audiogram performed on August 9, 1985 reflects that the Veteran’s hearing acuity in the right ear was as follows:   HERTZ 500 1000 2000 3000 4000 RIGHT 40 25 25 30 30 Therefore, the evidence demonstrates a worsening of the Veteran’s right ear hearing loss during service. Moreover, a September 2020 VA examiner reviewed the record and considered the Veteran’s statements at the examination and found that the pre-existing disorder was likely aggravated during basic training. Accordingly, the Board finds that there is not clear and unmistakable evidence that the right ear hearing loss was not aggravated by service. Thus, as there is not both clear and unmistakable evidence of a right ear hearing loss prior to service and that the right ear hearing loss was not aggravated by service, the presumption of soundness is not rebutted. The Board will therefore consider service connection for the right ear hearing loss on a direct basis. In this regard, the September 2020 VA examiner opined that the right ear hearing loss was not directly related to service, indicating that the hearing loss was likely related to the history of ear, nose, and throat problems and chronic colds reported by the Veteran at enlistment. However, as indicated, the right ear hearing loss is not found to have preexisted service under VA law and regulations. Therefore, the competent evidence reflects that the Veteran had a right ear hearing loss in service and had a right ear hearing loss that met the VA definition for hearing loss during the appeal period. As hearing loss is a chronic disability and the evidence need establish only that the current disability began in service, the Board finds that it is at least as likely as not that the Veteran has a right ear hearing loss disability that was incurred in service. The appeal is granted. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. M. Schaefer, 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.