Citation Nr: 21031245 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 15-45 492 DATE: May 21, 2021 ORDER Entitlement to service connection for right ear hearing loss is granted. FINDING OF FACT The evidence is in equipoise as to whether the Veteran's current right ear hearing loss, which existed prior to service, was aggravated beyond its natural progression during service. CONCLUSION OF LAW The criteria for service connection for right ear hearing loss have been met. 38 U.S.C. §§ 1111, 1131; 38 C.F.R. §§ 3.303, 3.304(b), 3.306, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1966 to September 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal of September 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). When this case was last before the Board in March 2019, the Board found that new and material evidence had been received to reopen the claim for service connection for bilateral hearing loss. The Board granted service connection for left ear hearing loss and remanded the issue of right ear hearing loss for a VA examination with etiology opinion. The case has now been returned to the Board for further appellate consideration. Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Establishing direct service connection generally requires competent evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A Veteran will be 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. See 38 U.S.C. §§ 1111, 1113; 38 C.F.R. § 3.304(b). A pre-existing disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of a disability. 38 C.F.R. § 3.306(a); see Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). A finding of aggravation is not appropriate in cases where the evidence specifically shows that the increase is due to the natural progress of the disease. Furthermore, temporary or intermittent flare-ups of a pre-existing disease during service are not sufficient to be considered aggravation of the disease unless the underlying condition, as contrasted to symptoms, worsens. See Jensen v. Brown, 4 Vet. App. 304, 306-7 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). Analysis The Veteran contends that the onset of his bilateral hearing loss was in service when a mortar hit his bunker. Notably, the Veteran is already service connected for left ear hearing loss and tinnitus due to acoustic trauma in service. The Veteran's February 1966 enlistment examination documented right ear hearing loss for VA purposes. Accordingly, the evidence shows that the Veteran's right ear hearing loss pre-existed his period of active duty service. 38 C.F.R. § 3.304(b). As the presumption of soundness does not apply, the Board must now determine whether the Veteran's right ear hearing loss underwent a worsening during service. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306. The Board finds that the evidence supports that it did. The Veteran's DD-214 reflects that his military occupational specialty was a light weapons infantryman. The Veteran is competent to report acoustic trauma in service and the description of his in-service noise exposure is consistent with the types and circumstances of his service. The Veteran was afforded a VA examination in October 2019. The examiner opined that the Veteran's hearing loss was not aggravated in service because the Veteran entered service with mild hearing loss which resolved itself upon separation. The examiner did not address the Veteran's assertions that his hearing did not improve, but worsened due to his in-service noise exposure, including artillery fire, aircraft noise, and an in-service explosion. Thus, the Board finds this opinion to be of little probative value. The Board notes the August 2014 VA examiner opined that the Veteran's right ear hearing loss was more likely than not aggravated beyond normal progression while in service. The examiner stated the Veteran's enlistment examination indicated mild hearing loss. However, the examiner only explained that the results of the Veteran's hearing test at the time of enlistment indicated a mild loss at 4000 Hertz in the right ear and did provide rationale for the aggravation opinion. The Board also notes that in May 2014, Dr. J.B. opined that the Veteran's hearing loss began in 1967 while in the military, with noise exposure of heavy artillery and weapons while in Vietnam. Dr. J.B. opined that the Veteran's hearing loss is likely coming from his years in the military. However, Dr. J.B. did not address aggravation of right ear hearing loss. Pursuant to the "benefit-of-the-doubt" rule, where there is "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. 38 U.S.C. § 5107. Upon weighing the evidence of record, the Board finds that the evidence is at least in equipoise as to whether the Veteran's right ear hearing loss was aggravated in service. The Board therefore concludes that, with the benefit of the doubt resolved in the Veteran's favor, a grant of service connection for right ear hearing loss is warranted. See Gilbert, 1 Vet. App. at 55. Jenna Brant Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Townsend, 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.