Citation Nr: 22017512 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 12-13 476 DATE: March 25, 2022 ORDER Entitlement to service connection for right ear hearing loss is granted. FINDING OF FACT The Veteran's right ear hearing loss, which clearly and unmistakably pre-existed service, was aggravated by service. CONCLUSION OF LAW The criteria for service connection for right ear hearing loss are met. 38 U.S.C. §§ 1110, 1131, 1153, 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 naval duty from August 1964 to August 1969, and again from August 1972 to May 1987, with service in the Naval Reserves from August 1969 to August 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO or AOJ). The Veteran testified before the undersigned Veterans Law Judge in a January 2013 Video Conference Board Hearing. A transcript of that hearing is of record. In a December 2019 decision, the Board denied entitlement to service connection for right and left ear hearing loss. The Veteran appealed such decision to the United States Court of Appeals for Veterans Claims (Court). In October 2020, the Court granted a September 2020 Joint Motion for Partial Remand (JMPR) filed by the parties vacating and remanding the Board's December 2019 decision denying entitlement to service connection for right and left ear hearing loss. In November 2021, the Board granted the Veteran's claim of service connection for left ear hearing loss, and remanded the matter of service connection for right ear hearing loss for additional development to include obtaining a new VA examination and opinion. Entitlement to Service Connection for Right Ear Hearing Loss 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, 1131; 38 C.F.R. § 3.303 (a). Service connection may 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the 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 pre-existing injury or disease will be considered to have been aggravated by active 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). A Veteran is presumed to have been in sound condition at service entrance except as to defects, infirmities, or disorders noted, or where clear and unmistakable evidence demonstrates that the injury or disease existed before service. 38 U.S.C. § 1111. The implementing regulation, 38 C.F.R. § 3.304 (b), similarly provides that "[t]he 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 and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted." 38 C.F.R. § 3.304 (b). A Veteran thus enjoys an initial presumption of sound condition upon service entry if the enlistment records do not reflect that the Veteran has a disease or injury that subsequently becomes manifest during service. Wagner v. Principi, 370 F.3d 1089, 1096 (2004); see 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). To rebut the presumption of soundness under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service, and that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003; Wagner, supra. Right ear hearing loss was noted on the Veteran's May 1964 pre-induction service examination, thus, this is a case for service aggravation. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306. The Veteran contends that his pre-existing right ear hearing loss was aggravated by service, particularly by heavy industrial noise exposure related to his duties as a construction electrician. See September 2011 statement and January 2013 hearing transcript. The evidence of record, including a January 2022 VA audiological examination report, shows a current right ear hearing loss disability. An in-service injury in this case has also been established as noise exposure was previously conceded by VA in a September 2019 Statement of the Case. See 38 C.F.R. § 3.104 (c). The Board finds that the Veteran's service treatment records provide support that the Veteran's pre-existing right ear hearing loss increased in severity. The Veteran's May 1964 pre-induction service examination, utilizing the pre-1967 testing standards set by the American Standards Association (ASA), have been converted, here, pursuant to the current VA regulations which define hearing loss for VA purposes are based on decibel (dB) measurements recorded in ISO (International Standards Organization) or ANSI (American National Standards Institute) units. See 38 C.F.R. § 3.385. In this regard, audiometric testing during the Veteran's May 1964 pre-induction service examination, utilizing the ISO units, revealed pure tone thresholds in the right ear as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 85 70 60 60 60 LEFT 15 10 10 10 5 The Veteran underwent another entrance examination in August 1972, before his second period of service which revealed pure tone thresholds in the right ear as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 80 80 70 95 75 LEFT 15 5 5 15 15 Thus, audiometric testing in August 1972 showed higher pure tone thresholds in the right ear at 1000 Hz, 2000 Hz, 3000 Hz, and 4000 Hz, when compared to the May 1964 pre-induction testing. Various VA examinations throughout the appeal have indicated the Veteran's pre-existing right ear hearing loss was not aggravated by service. However, the Board has found those opinions were deficient or otherwise not adequate to establish by clear and unmistakable evidence that the right ear hearing loss was not aggravated by service. VA examinations in January 2010 and July 2021 failed to adequately address this question. Similarly, while a February 2015 VA examiner addressed this question, the examiner failed to note the Veteran's previous period of service of active duty from August 1964 to August 1969 and whether any shift during that period represented aggravation. An October 2018 VA examination was also deemed inadequate, pursuant to the parties' September 2020 JMPR, as it failed to address in-service reports of right ear complaints and a possible ruptured drum. New VA examination reports and medical opinions were provided. In the first January 2022 VA medical opinion, the examiner provided an opinion in favor of the claim, noting that while there may have been some pre-existent right ear hearing loss, the Veteran's hearing worsened due to prolonged, in-service exposure to loud noise from generators. In a second January 2022 VA medical opinion, the examiner opined the Veteran's pre-existing right ear hearing loss was not aggravated by service. However, while the second January 2022 VA medical opinion noted a positive shift in hearing from the test dated May 1964 to the test dated August 1972, the examiner determined that the Veteran served active duty from 1972 to 1987, and that the Veteran's pre-existing hearing loss would not have changed or shifted during military service from 1972 to 1987. Similar to the February 2015 VA medical opinion, this determination also seemingly fails to note the Veteran's previous period of active duty from August 1964 to August 1969. Additionally, while the examiner pointed to "any number of factors," to include post military occupational noise exposure, that could have contributed to the Veteran's current right ear hearing loss, the examiner appears to have ignored the medical history in the January 2022 VA examination report, indicating a high probability of exposure to hazardous noise in service, and no noise exposure after military service. A clarifying opinion obtained in February 2022. The second examiner opined that there were no significant changes in the Veteran's hearing between 1964 and 1987. The examiner indicated the audiogram in May 1964 showed hearing loss in the right ear, and that an audiogram in April 1986 demonstrated no significant changes in the Veteran's hearing. The examiner concluded by stating that regardless of exposure or injury, the Veteran's hearing did not worsen until after he was discharged. This opinion is fundamentally flawed. First, a finding of worsening or an increase in disability is not dependent on the degree of increase. The basic question is whether there was an increase, which the examiner does seem to acknowledge. Second, in finding that the Veteran's preexisting right ear hearing loss had not worsened during his first period of active service, the examiner did not address the 10-decibel shift at 1000 and 2000 Hz, the 35-decibel shift at 3000 Hz, or the 15-decibel shift at 4000 Hz in the right ear in service, from May 1964 to August 1972. The clarifying opinion remains deficient or otherwise not adequate to establish by clear and unmistakable evidence that the right ear hearing loss was not aggravated by service. The burden of proof to show a lack of aggravation is on VA at this stage, and this burden must be met by "affirmative evidence" demonstrating that there was no aggravation. The first January 2022 VA medical opinion finding of a worsening of the Veteran's pre-existing right ear hearing loss due to prolonged, in-service exposure to loud noise from generators. The opinion is problematic but remains probative. The two negative opinions from 2022 are flawed for the reasons outlined above. Both opinions seemingly overlook significant probative evidence suggesting in-service aggravation. See Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). On review of the totality of the evidence, the Board finds that clear and unmistakable evidence has not been presented to establish that the Veteran's pre-existing right ear hearing loss was not aggravated during service. The presumption of soundness is not rebutted. The right ear hearing loss that manifested in service is deemed incurred in service. See Gilbert v. Shinseki, 26 Vet. App. 48, 53 (2012) (noting that such a finding establishes the second element of service connection), aff'd 749 F.3d 1370 (Fed. Cir. 2014); Horn, 25 Vet. App. at 235. As to the nexus element for service connection, the evidence tends to make it at least equally likely that the Veteran's current right ear hearing diagnosis is related to service. VA has conceded noise exposure. The January 2022 VA examiner opined that the Veteran developed hearing loss due to high noise exposure, with progressive deterioration, and has utilized hearing aids since 1977. Competent and credible evidence of a continuity of hearing loss symptoms since service has also been provided. This evidence satisfies the evidentiary nexus requirement. See Gilbert, 26 Vet. App. at 53-54. Therefore, after resolving reasonable doubt in the Veteran's favor, service connection for right ear hearing loss that pre-existed the Veteran's active service is warranted based on service aggravation. See 38 U.S.C. § 5107 (b). MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, 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.