Citation Nr: 21030074 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 16-12 301 DATE: May 17, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss was noted at entry into service. 2. The Veteran's bilateral hearing loss did not increase in severity during service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 1974 to January 1977. The Veteran provided testimony before the undersigned in April 2019. A transcript of that hearing is of record. This matter comes before the Board of Veterans' Appeals (Board) from an April 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Service connection for hearing loss was remanded in October 2019. The requested development having been completed; the matter has returned to the Board. The Veteran contends his bilateral hearing loss was caused by acoustic trauma in service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active 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 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, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). The presumption of soundness may be rebutted by clear and unmistakable evidence showing that a disability pre-existed service and that the disability was not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Thus, the Veteran is not required to show that a pre-existing injury or disease increased in severity during service. Id. Rather, the burden remains with VA to show by clear and unmistakable evidence that the pre-existing disease or injury was not aggravated by service. Id. VA may show a lack of aggravation if clear and unmistakable evidence establishes that there was no increase in disability during service, or that any increase in disability was due to the natural progress of the pre-existing condition. Id. If this burden is met, then the claimant is not entitled to service connection benefits. Id. On the other hand, if VA fails to show a lack of aggravation by clear and unmistakable evidence, then the presumption has not been rebutted. Id. at 1094 (holding that Congress intended to "convert aggravation claims to ones for service connection when the government fails to overcome the presumption of soundness under section 1111"). In that case, the claim will be considered as a normal claim for service connection and, if granted, no deduction for the degree of disability existing at the time of entrance will be made. Id. at 1096 (citing 38 C.F.R. § 3.322). In other words, the claim may not be denied, nor benefits deducted, on the basis of a finding that the disability in question pre-existed active service, if VA does not also meet its evidentiary burden of showing that the disability was not aggravated during service. The clear-and-unmistakable-evidence standard is a much more formidable evidentiary burden to meet than the preponderance-of-the-evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the clear-and-unmistakable-evidence standard is more demanding than the clear-and-convincing-evidence standard, which in turn is higher than the preponderance-of-the-evidence standard). It is an "onerous" and "very demanding" evidentiary standard, requiring that the evidence be "undebatable." See Cotant v. West, 17 Vet. App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993)). For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies 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 was afforded a VA examination in March 2014, which confirmed the presence of a bilateral hearing loss disability. Thus, the question as to hearing loss is whether it was caused or aggravated by service. The Veteran's service treatment records include a January 1974 Report of Medical Examination at entrance into active service, which showed the Veteran's auditory thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 5 35 45 LEFT 15 5 5 40 45 The Veteran's military occupational specialty was electronic warfare cryptic teletype interceptor, which has a high probability of noise exposure. There were no in-service complaints of hearing difficulties or any medical reports related to his hearing. In an October 1976 Report of Medical Examination at separation, the Veteran's auditory thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 10 Not tested 50 LEFT 15 15 10 Not tested 50 The March 2014 VA examiner reviewed the claims file and noted the Veteran's entry examination showed a high frequency hearing loss, as did his separation examination. The examiner also noted that the Veteran reported the onset of his hearing loss was sudden in nature, following noise trauma when the volume dial on his headset was turned up suddenly by accident, affecting his hearing. The examiner indicated that the Veteran had significant occupational noise exposure after service, as the Veteran reported working in construction his entire life. The Veteran also reported recreational noise exposure including occasional hunting without hearing protection. The examiner found that there was no evidence of any significant threshold shifts occurring during the Veteran's military service. An opinion was provided in April 2014 by the same examiner regarding service connection. The examiner noted that the Veteran's entry examination showed preexisting hearing loss, and that his separation audiogram showed a similar hearing loss. Based on those audiograms, the examiner deemed it less likely than not that the Veteran's current hearing loss was aggravated by military noise exposure. However, the examiner did not explicitly address whether his hearing loss increased in severity in service, and if so, whether that increase was due to the natural progression of his disability. As such, the Board remanded the matter for an addendum opinion. The Veteran was again afforded an examination in December 2019. The examiner confirmed the Veteran's bilateral hearing loss. The examiner reviewed the claims file and noted the Veteran's military and post-service noise exposure. The examiner found that there was not a permanent positive threshold shift for the Veteran's bilateral hearing loss and opined that there were no changes in hearing levels between service entry and exit. Therefore, his current hearing loss was not at least as likely as not caused by service. However, the examiner did not explicitly relate if the threshold shift noted was an increase in the severity of the Veteran's bilateral hearing loss, and if so, whether it was due to the natural progression of his hearing loss, or traumatic noise exposure. In an August 2020 addendum, the examiner indicated that while there were shifts during active duty, there were no significant shifts in hearing bilaterally. The examiner noted that the Veteran's hearing loss occurred before service and did not increased during service, and that the shifts noted during active duty did not represent an increase in severity, as the Veteran's hearing did not shift significantly during service. In a September 2020 addendum opinion, the examiner opined that the Veteran's hearing loss was a natural progression of hearing loss that began before service. The examiner again stated that there was not a significant shift in hearing bilaterally during service. In an October 2020 clarifying addendum opinion, the VA examiner opined that there was no significant shift in the Veteran's bilateral hearing loss from entrance to separation. The examiner noted that the shift is the kind of shift anyone might have, given that there was no standard threshold shift in the Veteran's hearing. The examiner opined that for aggravation to be considered, there must be an actual worsening of the condition. Here, the Veteran's hearing was not actually worsened in service, as there was no showing of an increased decibel loss upon exit. Taken together, the several VA opinions of record establish that the Veteran's bilateral hearing loss was not aggravated beyond its normal progression during the Veteran's active service. The April 2014 VA examiner opined that the Veteran's bilateral hearing loss was not aggravated by military noise exposure, as the Veteran had pre-existing hearing loss at entry, while the October 2020 VA examiner opined that the Veteran's bilateral hearing loss was not aggravated or worsened by his service as there was no actual worsening of his hearing. The combined rationale was that the Veteran's hearing was not aggravated by his active service, as there was no standard threshold shift. The examiners' combined opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As there was a notation on entrance into active service of bilateral hearing loss, the presumption of soundness and aggravation does not apply in this case, and the question becomes whether the hearing loss that pre-existed service underwent an increase in severity (was aggravated) during service. Given the findings within the service treatment records, coupled with the VA examiners' confirmations, the Board also finds the Veteran's bilateral hearing did not shift or worsen during his active service. There is, therefore, no basis upon which a finding can be made that the Veteran's preexisting hearing loss was aggravated by his active service. The Veteran testified that he believes his bilateral hearing loss is related to an in-service event, when the level on his headset was turned too high, which "blew" the headset off his ears. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA opinions of record. (Continued on the next page) As the preponderance of the evidence is against this claim, the "benefit of the doubt" rule is not applicable, and the Board must deny the claim for service connection for bilateral hearing loss. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Geer, 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.