Citation Nr: 22017704 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 17-57 248 DATE: March 25, 2022 ORDER Service connection for bilateral hearing loss is denied. FINDING OF FACT 1. The evidence of record persuasively weighs against finding that the Veteran's pre-existing right ear hearing loss disability was aggravated during active service. 2. The evidence of record persuasively weighs against finding that the Veteran's left ear hearing loss disability had its onset in or is otherwise related to disease or injury in service. CONCLUSION OF LAW The criteria for service connection for right and left ear hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1969 to March 1972. This case is before the Board of Veterans' Appeals (Board) on appeal from a May 2017 Regional Office (RO) rating decision. In that rating decision, the RO denied entitlement to service connection for bilateral hearing loss and tinnitus. The Veteran's notice of disagreement (NOD) was received in September 2017. The RO issued a statement of the case (SOC) in October 2017. The Veteran's VA Form 9, substantive appeal to the Board, was received in November 2017. In September 2020, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of the testimony is associated with the claims file. In April 2021 and November 2021, the Board remanded the case to the RO for further development and adjudicative action. During the appeal, the RO granted service connection for tinnitus and assigned a 10 percent disability rating, effective February 22, 2017 in a December 2021 rating decision. This represents a full grant of the benefit sought on appeal with respect to that issue and therefore such issue is no longer in appellate status or before the Board. Entitlement to service connection for bilateral hearing loss The Veteran contends that his current bilateral hearing loss disability is caused by or related to acoustic trauma during active service. He explained that before service he had normal hearing. See September 2017 NOD. The Veteran testified at the September 2020 Board hearing that he was expose to loud noise as a fuel specialist where he refilled airplanes and he was continuously exposed to aircraft noise for one year during active duty service. The Veteran testified that he did not recall having any hearing problems when he entered service. He started noticing problems after he got out of the military. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309; see also Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The question for the Board is whether the Veteran has a current bilateral hearing loss disability that began during service, is at least as likely as not related to, or was aggravated by an in-service injury, event, or disease. The Board concludes that the Veteran's pre-existing right ear hearing loss disability was not aggravated by acoustic trauma during active service and the Veteran's left ear hearing loss disability did not have its onset in, did not manifest within one year of discharge from active duty service, and was not caused by or related to acoustic trauma during active service. See 38 U.S.C. §§ 1110, 1154(b), 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Reeves v. Shinseki, 682 F.3d 988, 998-1000 (Fed. Cir. 2012); 38 C.F.R. § 3.303. In assessing the Veteran's service connection claim for hearing loss, there must first be a determination as to whether the Veteran has a current hearing loss disability under VA regulations. Hearing loss disability is determined for VA purposes using the criteria provided under 38 C.F.R. § 3.385. Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Additionally, the Court has held that the threshold for normal hearing is from 0 to 20 dB, and that threshold levels of above 20 dB indicate at least some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). An April 2017 VA examination reveals that the auditory thresholds were greater than 40 dB in at least one of the required frequencies, bilaterally. The examiner determined that the Veteran had sensorineural hearing loss in both ears. Thus, the evidence of record establishes that the Veteran currently has a bilateral hearing loss disability under VA regulations. The Veteran contends that he injured his hearing in service due to loud noise exposure while refueling airplanes while stationed in Iwakuni, Japan. The Veteran's DD Form 214 and service personnel record reflects that his military occupational specialty (MOS) during service was 1391, Bulk Fuel Specialist. As the Veteran was a bulk fuel specialist during service, it was likely that he was working on the flight line and exposure to loud noise would be consistent with the type and circumstances of the Veteran's service. Accordingly, the Veteran's history of in-service acoustic trauma is credible. In this case, the Veteran's enlistment examination includes an audiogram that was conducted in August 1969. The audiogram results reveal the following: HERTZ 500 1000 2000 3000 4000 RIGHT 35 40 25 25 45 LEFT 15 5 5 5 5 His hearing and ears were given a numeral designation of "2" on the enlistment examination form, which indicates that the Veteran's ear possessed some medical condition or physical defect and might impose some limitations on military classification and assignment. Defective hearing was noted in the Summary of Defects and Diagnosis section. As the entrance examination shows that the Veteran had hearing loss in the right ear of 40 dB in at least one of the required frequencies under VA regulations, the Veteran had a hearing loss disability prior to military service. See Hensley, 5 Vet. App. at 158. VA law provides that a Veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C. § 1111, 1132, 1137. The presumption of soundness attaches only where there has been an induction or entrance examination during which the disability about which the Veteran later complains was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). Accordingly, a right ear hearing loss disability was noted upon the entrance examination and the presumption of soundness does not apply. See 38 U.S.C. § 1111, 1137. The law provides that, if a disorder is established to have pre-existed service, and/or was present on entry into service, the veteran cannot bring a claim for service incurrence for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. In that case, the provisions of 38 U.S.C. § 1153 and 38 C.F.R. § 3.306 apply, and the burden falls on the veteran to establish aggravation. Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). The Board notes that a pre-existing 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. Aggravation may not be conceded, however, where the disability underwent no increase in severity during service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Temporary flare-ups of a pre-existing disorder during service, without evidence of a worsening of the underlying condition, do not constitute aggravation. Hunt v. Derwinski, 1 Vet. App. 292, 296-97 (1991). If a presumption of aggravation under section 1153 arises, due to an increase in a disability in service, the burden shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153; see also 38 C.F.R. § 3.306; Jensen, 19 F.3d at 1417; Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004). With respect to the left ear, the decibel (dB) levels were 20 dB or less at all frequencies in the April 1966 entrance examination; therefore, the Veteran's hearing in the left ear was within normal limits. See Hensley v. Brown, 5 Vet. App. 155 (1993) (holding the threshold for normal hearing is from 0 to 20 dB, and that threshold levels of above 20 dB indicate at least some degree of hearing loss). As a hearing loss disability was not noted on the entrance examination with respect to the left ear, he is presumed to have been in sound condition on entry into service with regard to left ear hearing loss. The service treatment records document that the Veteran was provided with an audiogram in March 1971. The results are the following: HERTZ 500 1000 2000 3000 4000 RIGHT 40 40 30 35 30 LEFT 20 15 10 15 15 The Veteran underwent another audiogram the next day with the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 40 40 30 35 30 LEFT 20 20 5 15 15 The Veteran's separation examination to include audiogram was conducted in February 1972. The February 1972 audiogram shows the following: HERTZ 500 1000 2000 3000 4000 RIGHT 45 40 40 15 45 LEFT 20 250 0 0 0 The evidence shows that the Veteran's pre-existing right ear hearing loss disability was not aggravated by service and that a left ear hearing disability was not incurred during service. In this regard, an audiologist provided a VA medical opinion in November 2021 that the Veteran's right ear hearing loss disability was clearly and unmistakable not aggravated beyond its natural progression by an in-service injury, event, or illness. The audiologist explained that the records show that the Veteran's military occupational specialty was engineer, construction, facilities, and equipment which was highly probable for hazardous noise exposure. The audiologist noted that the August 1969 entrance examination showed hearing loss in the right ear. In March 1971 and follow up conducted the next day shows stable thresholds (similar to findings of the entrance examination). The audiologist also determined that the separation examination confirmed asymmetrical hearing loss and staple threshold. The audiologist further asserted that there was no standard threshold shift at the time of separation. The audiologist addressed the Veteran's assertion that the entrance examination was inaccurate as he was unaware that he had hearing loss when he entered service. The audiologist asserted that the possibility of the entrance examination was inaccurate would also question the next three available examinations in the medical record at different facilities and times. All of the examinations conducted indicate similar hearing loss and pattern in the right ear and degree of hearing loss from 500-4000 Hz. The examiner also noted that although his military occupational specialty was remarkable for noise exposure, his post-service medical record reveals post military occupational noise exposure. Thus, the VA audiologist indicated that the Veteran's pre-existing right ear hearing loss disability was not aggravated during active duty service. Regarding the Veteran's left ear hearing loss disability, in a November 2021 an audiologist provided a VA medical opinion that the Veteran's left ear hearing loss disability is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. Specifically, the audiologist noted that the record shows the Veteran's military occupational specialist of engineer, construction facilities, and equipment which is highly probable for hazardous noise exposure. A March 1971 audiogram and follow up conducted the next day showed normal thresholds in the left ear. These audiograms showed early warnings of decrease hearing in the left ear yet stable thresholds. The separation examination confirmed asymmetrical hearing loss and stable thresholds. In a December 2021 addendum opinion, after considering the Veteran's lay statements to include being exposed to daily jet noise during service with inadequate hearing protection, as well as, the onset and continuous nature of his hearing loss, the audiologist determined that there is no evidence in the file that would show hearing loss occurred while service. In cases where there were entrance and separation audiograms and such tests were normal, there is no scientific basis for concluding that hearing loss that developed years later are causally related to military noise exposure. Evidence from such studies is sufficient to conclude that the most pronounced effects of noise induced hearing loss occur immediately following exposure and recovery to stable thresholds occurs within approximately 30 days. The Veteran's entrance and discharge physical examination hearing tests do not indicate a significant threshold shift while in the military. The Veteran's service treatment records do not indicate a history of hearing loss in the military. There is no record of complaints of hearing problems for more than 30 years since the Veteran's service. His hearing loss is consistent with natural progression for his long history of noise exposure working at the railroad. The available anatomical and physiological evidence suggests that delayed post-exposure hearing loss is not likely. The Veteran does not contend, and the evidence does not show, that he had a continuity of symptomatology of left ear hearing loss since service. Specifically, during the September 2020 Board hearing, the Veteran testified that he did not notice his hearing loss until he got out of service. He explained that his hearing loss was gradual, and he didn't realize that he was losing his hearing, but somewhere in the early 1980's he started to hear recurrent ringing in his ears. The Veteran contends that his bilateral hearing loss is related active military service. While the Veteran is competent to report observable symptoms such as difficulty hearing, in this case, determining the etiology of his post-service symptoms and diagnosis of sensorineural hearing loss requires medical expertise. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). Thus, the lay statements from the Veteran asserting that his bilateral hearing loss is related to noise exposure in service are not competent evidence as to causation, and do not have probative value. Furthermore, sensorineural hearing loss (as an organic disease of the nervous system) may be presumed to have been incurred in service if it manifested to a compensable degree within one year of discharge from service. 38 C.F.R. § 1112; 38 C.F.R. §§ 3.307, 3.309(a). There is no evidence that the Veteran was diagnosed with left ear sensorineural hearing loss within one year after discharge from active duty service. Therefore, the Veteran's left ear hearing loss disability is not presumed to have been incurred in active duty. As the competent and probative evidence of record does not establish that the Veteran's pre-existing right ear hearing loss disability underwent an increase in disability during service; and, it does not establish a relationship between the Veteran's current left ear hearing loss disability and his period of active service, the Board finds that the weight of the evidence is persuasively against the claim. Thus entitlement to service connection for bilateral hearing loss is not warranted. In reaching this conclusion, the Board has considered the provisions of 38 U.S.C. § 5107(b), but as the evidence persuasively weighs against finding that the Veteran's right ear hearing loss disability was aggravated by service and the Veteran's left ear hearing loss disability did not have its onset in or is otherwise related to active service, the evidence is not in approximate balance. (Continued on the next page) Accordingly, the claims must be denied. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Berry, 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.