Citation Nr: 22015019 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 19-17 967 DATE: March 16, 2022 ORDER Service connection for left ear hearing loss is granted. REMANDED Entitlement to service connection for right ear hearing loss is remanded. FINDING OF FACT It is clear and unmistakable that the Veteran's left ear hearing loss existed prior to service; it is not clear and unmistakable that this disability was not aggravated beyond its normal progression during active service CONCLUSION OF LAW The criteria for service connection for left ear hearing loss have been met. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from June 1987 to June 1991. For his meritorious service, the Veteran was awarded (among other decorations) the Sea Service Deployment Ribbon. The Veteran testified during an October 2021 virtual hearing. A transcript of this proceeding has been associated with the record. The appeal has been bifurcated as set forth herein. Service Connection The Veteran is currently pursuing direct service connection for left ear hearing loss. As a threshold matter, there is competent evidence that the Veteran demonstrates a current left ear hearing loss disability in accordance with VA regulations. See 38 C.F.R. §§ 3.303, 3.385; see also November 2018 VA examination (showing left ear hearing loss under puretone threshold testing). A veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the 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). To rebut the presumption of soundness for disorders not noted on the entrance or enlistment examination, VA must show by clear and unmistakable evidence that (a) the disease or injury existed prior to service, and (b) that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). (The Board acknowledges that the standard for "aggravation" in a claim of secondary service connection requires only an incremental increase in disability, as per Ward v. Wilkie, 31 Vet. App. 233 (2019); however, a permanent increase in severity is required to establish aggravation of a preexisting disability for the purposes of the presumption of aggravation under 38 U.S.C. § 1153, 38 C.F.R. § 3.306)). Here, there is no controversy that the Veteran entered service with preexisting left ear hearing loss. His November 1986 entrance examination shows hearing loss at 3, 4, and 6 kHz, as interpreted by a November 2018 VA examiner. The Veteran has also offered competent and credible testimony on this point, and there is no such evidence to contradict such a history. See, e.g., October 2021 hearing transcript; Layno v. Brown, 6 Vet. App. 465, 469 (1994); Miller v. Wilkie, 32 Vet. App. 249 (2020). Thus, there is clear and unmistakable evidence that the Veteran's left ear hearing loss existed prior to service. However, there is not clear and unmistakable evidence that the Veteran's left ear hearing loss was not aggravated by his service. There is conflicting evidence on this point. Of note, a November 2018 VA examiner opined that the Veteran's preexisting left ear hearing loss was not aggravated beyond its normal progression in military service. By way of rationale, the examiner acknowledged the degree of hearing loss shown at entrance, and then concluded that the Veteran's hearing had not "changed significantly" by separation. Specifically, temporary threshold shifts were observed during service evaluations spanning three dates in February 1990. However, the Veteran's hearing recovered and was not significantly different between entrance and exit evaluations. Therefore, a finding of aggravation was not asserted. This examination is probative evidence against the claim, as the accompanying opinion is based upon contemporaneous assessment of the Veteran and contemplative of his observable hearing loss during service. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that the probative value of a medical opinion comes from the "factually accurate, fully articulated, sound reasoning for the conclusion"). However, direct consideration must also be afforded to the Veteran's service treatment records (STRs). Compellingly, a June 1987 audiogram, corresponding with the Veteran's service entrance, is clearly crossed out with accompanying language which reads, "New baseline established. Do not use this one as a reference!" A February 1990 audiogram contains the reestablished baseline results. It is unclear whether the November 2018 examiner was aware of these baseline statements and which, if either, played a role in her negative opinion. Additionally, the November 2018 opinion does not offer consideration to significant positive evidence of record, to include a January 1988 STR documenting worsening left ear hearing loss and the Veteran's own competent testimony that his hearing loss was permanently aggravated by his military service. See, e.g., October 2021 hearing transcript; June 2019 lay statement. And while the examiner opines that the Veteran showed only a temporary threshold shift during service, it is apparent by comparison of the entrance to exit examinations that a threshold shift did indeed occur. Accordingly, the available evidence is not so overwhelming as to constitute clear and unmistakable evidence that left ear hearing loss was not aggravated by service; rather, the Veteran's STRs and corresponding testimony show that aggravation is likely. At this time, the Board declines to remand for potentially negative evidence (specifically, an addendum opinion contemplative of those factors noted above). Rather, it is found that VA has not met its burden in this case and aggravation of a preexisting disability is found. Thus, the evidence for the claim is at the least in approximate balance, the benefit-of-the-doubt rule is applicable, and service connection for left ear hearing loss is granted. REASONS FOR REMAND Although the Board sincerely regrets the additional delay this will cause, further development is necessary prior to the adjudication of the right ear appeal. Historically, the Veteran's claim has been denied because a current hearing loss disability was not established under 38 C.F.R. § 3.385. However, the Veteran offered competent testimony as to a worsening of his right ear hearing loss during the October 2021 hearing, such that the criteria for a current disability may now be met. Accordingly, a new examination is required to assess the current nature and severity of the claimed right ear hearing loss. The matter is REMANDED for the following action: Schedule the Veteran for an examination to assess the nature and etiology of his right ear hearing loss. The claims file and a copy of this remand must be made available for review. In particular, the examiner is asked to: a. Assess the current severity of the Veteran's right ear hearing loss (both Maryland CNC and puretone threshold testing); b. If a current disability is found, opine whether it is at least as likely as not (50 percent probability or more) that the Veteran's right ear hearing loss began in service, was caused by service, or is otherwise related to service, including conceded in-service noise exposure. In formulating the opinion, the examiner is advised that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. A complete rationale should be provided for all opinions or conclusions expressed. It should be noted that the Veteran is competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kovarovic, 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.