Citation Nr: 21028672 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 14-11 413 DATE: May 11, 2021 ORDER Entitlement to service connection for left ear hearing loss is granted. FINDING OF FACT The Veteran's preexisting left ear hearing loss underwent an increase in severity in service and is presumed to have been aggravated by service; the presumption of aggravation has not been rebutted by clear and unmistakable evidence. CONCLUSION OF LAW The criteria for entitlement to service connection for left ear hearing loss have been met. 38 U.S.C. §§ 1101, 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1979 to August 1982, and on active duty in the Army National Guard from March 15, 2003 to July 31, 2003, with additional other periods of service in the Army National Guard. The claim was remanded by the Board of Veterans' Appeals (Board) in October 2015, January 2018, July 2020, and February 2021. Service Connection Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may also be granted by virtue of aggravation by active service. An appellant is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, except where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. §§ 1111; 38 C.F.R. § 3.304 (b). 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 progression of the disease. 38 U.S.C. §§ 1153; 38 C.F.R. § 3.306 (a). In explaining the meaning of an increase in disability, the United States Court of Appeals for Veterans Claims (Court) has held that "temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered 'aggravation in service' unless the underlying condition, as contrasted to symptoms, is worsened." Hunt v. Derwinski, 1 Vet. App. 292, 297 (1992); see also Davis v. Principi, 276 F.3d 1341, 1346 (Fed. Cir. 2002) (explaining that, for non-combat veterans, a temporary worsening of symptoms due to flare ups is not evidence of an increase in disability). However, the increase need not be so severe as to warrant compensation. Browder v. Derwinski, 1 Vet. App. 204, 207 (1991). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for left ear hearing loss is granted. The Veteran contends that his preexisting left ear hearing loss was aggravated by in-service hazardous noise exposure. As an initial matter, the Board finds that the Veteran has a current diagnosis of left ear hearing loss. See November 2020 VA Hearing Loss and Tinnitus Disability Benefits Questionnaire. Next, the Board notes that the Veteran's left ear hearing loss was normal at the entrance and separation examinations of the Veteran's first period of active service. However, regarding the Veteran's second period of active service, the December 2001 National Guard entrance examination audiogram results show that the left ear pure tone threshold was 40 decibels at 300 Hertz, which meets the standard for a preexisting hearing loss disability under 38 C.F.R. § 3.385. C.f. McKinney v. McDonald, 28 Vet. App. 15 (2016). As such, the left ear hearing loss is considered a pre-existing condition for the second period of active service As the presumption of soundness does not apply here, the evidence must establish that aggravation of the Veteran's left ear hearing loss occurred during active service. As stated above, 38 U.S.C. § 1153 contains a presumption of aggravation when it is shown that a pre-existing disorder underwent an increase in disability during service. Here, the record demonstrates that the Veteran's left ear hearing loss underwent an increase in severity during service. As stated above, on the entrance examination in December 2001, his left ear pure tone threshold was 40 decibels at 300 Hertz. In contrast, an active duty service medical record dated April 2003 shows that the Veteran's left ear pure tone threshold increased in severity from 40 decibels at 300 Hertz to 50 decibels at 300 Hertz. Considering the foregoing, the Board finds that the presumption of aggravation has been raised. Once there is an increase in disability, as is the case here, the burden shifts to the Secretary, and there must be clear and unmistakable evidence that the condition increased due to the natural progress of the disease not the less likely as not. See Horn v. Shinseki, 25 Vet. Ap. 231, 234 (2012). In the most recent February 2021 Board remand, the claim was remanded to obtain a medical opinion as to whether there is clear and unmistakable evidence that the Veteran's preexisting left ear hearing loss was not aggravated beyond the natural progression of the condition. An opinion was obtained in March 2021. However, the March 2021 VA examiner opined that it is less likely than not that the Veteran's hearing loss, which existed prior to his second active period, was aggravated beyond normal progression due to noise in service. The Board finds this opinion not probative because the examiner failed to use the correct standard of review. As the March 2021 VA examiner's opinion lacks probative value, the Board finds that there is no clear and unmistakable evidence of record showing that the increase in disability was due to the natural progress of the disease. Thus, service connection for left ear hearing loss based upon in-service aggravation is warranted. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. J. Cho, 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.