Citation Nr: 21041510 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 14-44 239 DATE: July 9, 2021 ORDER Entitlement to service connection for right ear hearing loss is granted. Entitlement to service connection for left ear hearing loss is denied. FINDING OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his right ear hearing loss is at least as likely as not related to service to include exposure to hazardous noise. 2. The Veteran's left ear hearing loss was noted at entrance to service and therefore pre-existed service. The most probative evidence does not show an increase in the disability during service. CONCLUSION OF LAW 1. The criteria for entitlement to service connection for a right ear hearing loss disability have been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 4.3. 2. The criteria for entitlement to service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1153, 5107; 38 C.F.R. §§ 3.102, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1984 to September 1987. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision by a Department of Veteran's Affairs (VA) Regional Office (RO). The Board remanded this issue in May 2018 and January 2021 for further development. Service Connection Establishing service connection generally requires competent evidence showing: (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 or aggravated during service. Shedden v. Principi, 381, F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also 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). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). A hearing loss disability is defined for VA compensation purposes with regard to audiologic testing involving puretone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385. For purposes of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC test are less than 94 percent. Id. 1. Entitlement to service connection for right ear hearing loss. The Veteran contends that he has right ear hearing loss as a result of noise exposure to include weapon fire and a bomb detonation while in service. See February 2012 application for compensation or pension. In the Veteran's December 2014 VA Form 9 appeal to the Board, he further asserts he has had hearing loss since service which has only worsened over time. He also asserts he was never "given any hearing protection during [his] time in the service." The Veteran underwent a VA examination in February 2013 in which the examiner diagnosed him with sensorineural hearing loss of the right ear. The Veteran's audiogram showed hearing loss for VA purposes in the right ear. This was confirmed in a March 2021 VA examination. The first element of service connection has been met. Additionally, the Veteran asserts his hearing loss is a result of exposure to gunfire, large caliber weapons, and a bomb explosion. The Veteran's military records show his military occupational specialty as a rifleman and earning a rifle sharpshooter badge. The Board finds his lay evidence competent, credible, and consistent with the time, place, and circumstances of his service. As a result, the second element of service connection has been met. The question remaining before the Board is whether the Veteran's current right ear hearing loss is related to the hazardous noise exposure he experienced in service. The evidence contains conflicting nexus opinions. Reviewing the record as a whole, the Board finds that the evidence is in equipoise as to whether the Veterans right ear hearing loss is related to his in-service acoustic trauma. Resolving reasonable doubt is his favor, the Board grants service connection for right ear hearing loss. 38 C.F.R. § 4.3. The claim is granted. 2. Entitlement to service connection for left ear hearing loss. The Veteran asserts that his pre-existing left ear hearing loss was aggravated beyond its natural progression during service. The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff'd 749 F.3d 1370 (Fed. Cir. 2014). In this case, there is a question as to whether the Veteran's left ear hearing loss preexisted his military service from September 1984 to September 1987. The appellant established "Veteran" status based on his period of active duty service. The Veteran's appeal is based on the period of active duty from September 1984 to September 1987. The Veteran's May 1984 enlistment examination notes the Veteran's left ear had hearing loss for VA purposes at the time of the examination. Specifically, the May 1984 audiogram shows puretone thresholds for the left ear at 15 Hertz (Hz) at 500 decibels, 0 Hz at 1,000 decibels, 10 Hz at 2,000 decibels, 40 Hz at 3,000 decibels, and 20 Hz at 4,000 decibels. As the enlistment examiner noted the Veteran's hearing to be 40 decibels at 3000 Hz, the Veteran met the criteria for hearing loss for VA purposes prior to his enlistment in his left ear only. In Wagner v. Principi, 370 F.3d 1089, 1096 (2004), the United States Court of Appeals for the Federal Circuit held if a preexisting disorder is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disorder, but the Veteran may bring a claim for service-connected aggravation of that disorder. In that case, 38 U.S.C. § 1153 applies and the burden falls on the Veteran to establish an increase in disability during service. If the presumption of aggravation attaches, the burden shifts to the government to show by clear and unmistakable evidence that there has been no increase in the severity of the preexisting condition or that any increase was the result of natural progression. Id; see also 38 C.F.R. § 3.306(b). The Veteran's service treatment records show additional audiograms taken while in service. The Veteran's left ear hearing was tested again in October 1984 to be used as a reference audiogram which showed 15Hz at 500 decibels, 10Hz at 1,000 decibels, 5Hz at 2,000 decibels, 5Hz at 3,000 decibels, and 30Hz at 4,000 decibels. This examination does not show hearing loss for VA purposes. The Veteran's hearing was tested again in July 1986 which showed his left ear to be 15Hz at 500 decibels, 15Hz at 1,000 decibels, 5Hz at 2,000 decibels, 5Hz at 3,000 decibels, and 30Hz at 4,000 decibels. This examination also does not show hearing loss for VA purposes. The Veteran's left ear hearing was also tested at separation in August 1987. This audiogram shows the Veteran's left ear hearing to be 15Hz at 500 decibels, 10Hz at 1,000 decibels, 5Hz at 2,000 decibels, 5Hz at 3,000 decibels, and 35Hz at 4,000 decibels. No hearing loss for VA purposes was present. There are no additional audiograms of record until the Veteran's February 2013 VA examination, almost 32 years after his separation from service. The Veteran's hearing was also tested during an October 2019 and January 2020 VA examination. While all three of the examinations showed current hearing loss for VA purposes, none of them found that the Veteran's audiograms from his time in service demonstrated worsening hearing in the left ear from his enlistment in 1984 to his separation in 1987. The Board notes that the Veteran asserts he was never given a separation examination. However, the August 1987 examination stated the purpose of the exam as "RAD" or "release from active duty." This constitutes a separation examination prior to the Veteran's release from active duty in September 1987. The Veteran also asserts his in-service audiograms are inadequate for rating purposes as they do not contain Maryland consonant-vowel nucleus consonant (CNC) tests. However, the use of the Maryland CNC is required when seeking "an examination for hearing impairment for VA purposes." The examinations conducted in service are not specifically to determine hearing loss for VA purposes but rather to have a record of the Veteran's overall health throughout the course of his active duty service. As a result, the May 1984, October 1984, July 1986, and August 1987 audiograms are adequate for VA purposes. The Veteran's lay evidence shows that he feels he "suffered hearing loss during my time in the marine corps. I knew I had lost hearing in both ears." See May 2013 notice of disagreement. In his VA Form 9 he stated, "I had felt I had lost some hearing to both ears. It was chronic hearing loss and it did not bother me much. As time [h]as gone on my hearing loss has gradually gotten worse..." The Veteran's reports generally indicate that he felt his hearing loss had its onset in service, rather than addressing any worsening in the left ear. In fact, he stated that it did not bother him much. The Veteran is competent to report observable symptoms such as difficulty hearing. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, the Veteran's lay evidence does not make a case for worsening in the left ear that reconciles the conflict with the objective audiometric evidence made in service. Due to its inconsistency with the evidence of record, the Board finds the Veteran's evidence less probative than the audiograms in the STRs. The burden is on the Veteran to show worsening in order to establish the presumption of aggravation. Wagner; 38 C.F.R. § 3.306. The Veteran's representative makes a conclusory statement in a March 2015 brief that the STRs show worsening hearing but provides no rationale or citation to facts to support this argument. In reviewing the audiograms of record during the Veteran's active duty service, no significant shifts in hearing were reported. The Veteran originally met the criteria of hearing loss for VA purposes due to the 40Hz measurement at 3,000 decibels recorded in his May 1984 enlistment examination. However, the audiograms from October 1984, July 1986, and August 1987 do not show an increase in severity of his left ear hearing loss during that time. As the most probative evidence of record does not show an increase in the severity of left ear hearing loss during service the Veteran has not met his burden to show an increase in the disability. The presumption of aggravation does not attach. As such, a discussion of clear and unmistakable evidence to rebut the presumption of aggravation is not required. Wagner, 370 F.3d at 1096. Because the Veteran's pre-existing left ear hearing loss was not aggravated by military service entitlement to service connection must be denied. (Continued on the next page) The claim is denied. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Associate Counsel, S. Conti 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.