Citation Nr: 22016330 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 17-52 160 DATE: March 21, 2022 ORDER Entitlement to service connection for right ear hearing loss is granted. FINDING OF FACT Right ear hearing loss was noted on entrance to active-duty service and underwent a worsening during service which was not clearly and unmistakably due to the natural progression of the disease. CONCLUSION OF LAW The criteria for entitlement to service connection for right ear hearing loss have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1969 to April 1977. These matters are before the Board of Veterans' Appeals (Board) on appeal of an October 2016 Department of Veterans Affairs (VA) rating decision. In December 2019, the Board denied entitlement to service connection for right ear hearing loss and remanded entitlement to service connection for a left ear hearing loss. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2020 Order, the Court granted a Joint Motion for Remand (JMR) of the Veteran and the Secretary of Veterans Affairs (the Parties) to vacate and remand the portion of the Board's December 2019 decision that denied entitlement to service connection for right ear hearing loss, with instructions that the Veteran be afforded a new Board hearing regarding that issue. In October 2021 the Veteran testified at a hearing before the undersigned. The Veteran's October 2021 Board hearing testimony was explicitly limited to the issue of entitlement to service connection for a right ear hearing loss and did not include testimony regarding the claimed left ear hearing loss. The Veteran also previously testified regarding his right ear hearing loss before a different Veterans Law Judge in September 2019. Under such instances, the Veteran generally has a right to a third hearing before a third Veterans Laws Judge. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). However, the issue for consideration in this appeal is granted in full. Therefore, no due process deficiency results from the fact that the Veteran has not been afforded a third hearing in this case. The issue of entitlement to service connection for a left ear hearing loss will be the subject of a separate Board decision. The Veteran contends that his right ear hearing loss is related to in-service noise exposure. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease initially diagnosed after service 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 for a disability requires evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A veteran will be found to have hearing loss for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. A preexisting injury or disease will be considered to have been aggravated by active military 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 progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306 (b). The Veteran's service treatment records are significant for February 1968 audiometric results reported in standards set forth by the American Standards Association (ASA). After December 31, 1970 it is assumed that audiometric test results were reported in standards set forth by the International Standards Organization (ISO)-American National Standards Institute (ANSI). To facilitate data comparison, ASA standards can be converted to ISO-ANSI standards. The February 1968 examination report noted the following pure tone thresholds in decibels, and the conversions to ISO-ANSI standards included in parentheses: HERTZ 500 1000 2000 3000 4000 RIGHT 30 (45) 30 (40) 10 (20) 15 (25) 25 (30) The February 1968 audiometric testing revealed a right ear hearing loss disability based on the findings at 500 and 1000 Hz under the ISO-ANSI standards. The Board therefore finds that a right ear hearing loss disability preexisted the Veteran's active service. A July 1970 service treatment record noted that the Veteran complained of "occasional hearing loss" and requested his "ears to be flushed clean." March 1977 separation audiological results do not reveal an increase of pure tone thresholds at any frequency as compared to the February 1968 audiometric testing. In July 2015 a VA examiner diagnosed a right ear mixed hearing loss which pre-existed active-duty service. The examiner opined that the hearing loss was not aggravated beyond its normal progression by military service noting no significant change in hearing thresholds on discharge examination. On a private audiological examination in October 2015, the Veteran was diagnosed with right ear mixed hearing loss. The audiologist opined that the Veteran's hearing loss was at "least as likely as not caused by or was a result of noise exposure during his military service from 1969 to 1977." The examiner noted that the Veteran reported exposure to "excessively loud noise (grenade explosion)" during service. In September 2016 a VA examiner noted that the Veteran had a right ear sensorineural hearing loss that existed prior to service and stated that the pre-existing hearing loss was not aggravated beyond normal progression in military service. The examiner reasoned that "[h]earing sensitivity did not exhibit any sign[i]ficant shifts between pre-induction and separation." At his October 2021 Board hearing, the Veteran reported subjectively experiencing decreased hearing in his right ear during service, particularly after exposure to the sound of weapons fire without hearing protection and a nearby grenade detonation. In particular, the Veteran described having difficulty locating the source of sounds during service. He reported continuing right ear hearing loss following service. The Board finds that the evidence of record is in approximate balance as to whether the Veteran's pre-existing right ear hearing loss was aggravated during service. While the separation audiological examination report did not demonstrate a threshold shift compared to entrance examination, the Veteran has credibly described experiencing decreased hearing during service with difficulty locating the sources of sounds, and that this worsening continued following service. Given that the Veteran reported worsening right ear hearing following exposure to hazardous noise from gunfire and a grenade detonation, the Board finds that there is not clear and unmistakable evidence that such worsening was due to the natural progression of the disease. On the contrary, the worsening hearing loss is attributed specifically to hazardous noise exposures during service. Accordingly, right ear hearing loss was noted on entrance to active-duty service. The evidence is in approximate balance as to whether right ear hearing loss underwent a worsening during service and there is not clear and unmistakable evidence that such worsening was due to the natural progression of the disease. Entitlement to service connection for right ear hearing loss is granted. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bametzreider, Paul J. 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.