Citation Nr: 18143995 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 15-02 053 DATE: October 22, 2018 ORDER Service connection for bilateral sensorineural hearing loss is granted. Service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran was exposed to loud noise (acoustic trauma) while in service. 2. The Veteran currently has bilateral sensorineural hearing loss that is a disability for VA purposes. 3. Symptoms of the current bilateral sensorineural hearing were chronic in service. 4. The Veteran currently has tinnitus. 5. Tinnitus was caused by the loud noise exposure in service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for bilateral sensorineural hearing loss have been met. 38 U.S.C. §§ 1110, 1112, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326, 3.385. 2. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1970 to May 1974. This matter is on appeal from a January 2013 rating decision issued by the RO in Boise, Idaho. On the January 2015 substantive appeal (VA Form 9), the Veteran requested a hearing before the Board at the local VA office. The Veteran withdrew the hearing request in July 2016. See July 2016 Report of General Information. Legal Authority for Service Connection Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 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. 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). The Veteran is currently diagnosed with bilateral sensorineural hearing loss and tinnitus (as organic diseases of the nervous system) which are “chronic” diseases under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for “chronic” in-service symptoms and “continuous” post service symptoms apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see also Fountain v. McDonald, 27 Vet. App. 258, 271 (2015) (holding that where there is evidence of acoustic trauma, the presumptive provisions of 38 C.F.R. § 3.309 (a) include tinnitus as an organic disease of the nervous system). Where a veteran served ninety days or more of active service and the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b). 1. Service Connection for Bilateral Sensorineural Hearing Loss The Veteran contends that the currently diagnosed bilateral sensorineural hearing loss is the result of in-service loud noise exposure from working as an aircraft mechanic during active service. The Veteran asserts that he was diagnosed with hearing loss in service. After a review of all the evidence, the Board finds that the Veteran was exposed to loud noise (acoustic trauma) while in service that caused permanent injury to the auditory nerves, such that the symptoms of hearing loss were already “chronic” during service to meet the criteria at 38 C.F.R. § 3.303(b) for presumptive service connection for “chronic” symptoms in service. The DD Form 214 reflects the Veteran’s military occupational specialty (MOS) was as an aircraft mechanic, which indicates a high probability of hazardous noise exposure during service. The April 1974 service separation examination reports shows an upward shift in decibel levels during service and even a diagnosis of high frequency hearing loss. Compare July 1970 Entrance Examination (noting 10 decibels at 4000 hertz in the left ear) and April 1974 Separation of Examination (noting 30 decibels at 4000 hertz in the left ear). Such evidence of loud noise exposure, threshold shifts, and diagnosis of sensorineural hearing loss in service show the damage to the auditory nerve occurred during service, which is a evidence of “chronic” symptoms of hearing loss in service. Sensorineural hearing loss and tinnitus are linked with nerve damage that most often occurs “when the tiny hair cells in the cochlea are injured.” Fountain, 27 Vet. App. at 266 (quoting VA Training Letter 10-02). In Fountain, the Court referenced VA Training Letter 10-02, in addition to other medical and legal authority, and noted that chronic sensorineural hearing loss, as an organic disease of the nervous system, was due to a problem in the inner ear or in the auditory nerve between the inner ear and the brain, and was commonly caused by chronic exposure to excessive noise, in addition to age related sensorineural hearing loss. The Court noted that chronic sensorineural hearing loss caused by acoustic trauma resulted in damage to the inner ear and qualified as an organic disease of the nervous system under 38 C.F.R. § 3.309. The in-service acoustic trauma causes permanent nerve damage to the auditory nerve or inner ear, which denotes the onset of the current bilateral sensorineural hearing loss in service. Such sensorineural hearing loss is a permanent disability that was incapable of actual improvement of the nerve damage because chronic sensorineural hearing loss either progresses or remains the same (i.e., progression may be prevented), while restoration (i.e., improvement) of chronic sensorineural hearing loss that was caused by acoustic trauma is not medically possible. See Fountain, 27 Vet. App. 258; VA Training Letter 10-02. The Board next finds that the Veteran has a current disability of bilateral sensorineural hearing loss for VA compensation purposes (38 C.F.R. § 3.385). The Veteran was first diagnosed with bilateral high frequency hearing loss in the April 1974 service separation examination. Audiological findings documented in the July 2010 private treatment records and the January 2013 VA examination demonstrate that the Veteran’s bilateral sensorineural hearing loss meets the VA criteria for hearing loss disability at 38 C.F.R. § 3.385. Based on this evidence, all of the elements for presumptive service connection under 38 C.F.R. § 3.303(b) are met. Notwithstanding the above, in the January 2013 VA examination the examiner offered a purported direct service connection opinion that the Veteran’s bilateral sensorineural hearing loss is not at less likely than not the result of military service because both 1) the service entrance and service separation audiograms demonstrated normal hearing threshold levels for VA purposes and 2) that no hearing loss was shown at separation. The rationale underlying the VA examiner’s purported direct service connection negative opinion in January 2013 opinion commits the legal error of requiring hearing loss to a disabling degree (to meet the standards of 38 C.F.R. § 3.385) during service. This is an extra-legal requirement that is contrary to statute, regulation, and case law (that unfortunately still appears in VA rating decision boilerplate language). 38 C.F.R. § 3.303(d) (“Postservice initial diagnosis of disease. Service connection may be granted for any disease diagnosed after discharge”); Godfrey v. Derwinski, 2 Vet. App. 352 (1992) (holding that a veteran is “not obligated to show that hearing loss [to 38 C.F.R. § 3.385 standards] was present during active military service”); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (the absence of documented hearing loss in service, including no audiometric test at service separation and where the known audiometric test scores in service were “within normal limits,” does “not serve as a bar to service connection”); Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (evidence of a current hearing loss disability meeting the requirements of 38 C.F.R. § 3.385 and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for claimed hearing loss even where hearing was found to be within normal limits on audiometric and speech-recognition testing at the time of separation from service); 38 C.F.R. 3.303(b) (sensorineural hearing loss only needs “continuous symptoms” since service to relate the current sensorineural hearing loss disability to service for presumptive service connection for one of the “chronic” diseases under 38 C.F.R. § 3.309(a)). Such legal error by a VA examiner may not be adopted by a VA adjudicator and passed off as a mere medical opinion; it is still legal error, whether committed by a VA examiner or a VA adjudicator, to require that hearing loss meet the 38 C.F.R. § 3.385 standards during service. The rationale underlying the VA examiner’s purported direct service connection negative opinion in January 2013 is also based upon an inaccurate factual premise that “no” hearing loss was shown at service separation. This is an inaccurate factual assumption because the April 1974 service separation examination reports shows an upward shift in decibel levels during service and even a diagnosis of high frequency hearing loss. Compare July 1970 Entrance Examination (noting 10 decibels at 4000 hertz in the left ear) and April 1974 Separation of Examination (noting 30 decibels at 4000 hertz in the left ear). Because the purported January 2013 opinion on the etiology of hearing loss is based upon a materially inaccurate factual assumption, for this additional reason it is of no probative value. See Reonal v. Brown. 5 Vet. App. 458, 461 (1993) (finding that if the examiner relies on an inaccurate fact, then the opinion has little or no probative value). Moreover, as the criteria for presumptive service connection under 38 C.F.R. § 3.303(b) are met based on “chronic” symptoms of hearing los in service as demonstrated by the in-service loud noise, threshold shifts, and diagnosis of sensorineural hearing loss at the April 1974 separation examination, the need for a medical opinion on the question of direct service connection between current hearing loss and service is rendered moot. See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013) (holding the presumptive service connection provisions of 38 C.F.R. § 3.303(b) provide an “alternative path to satisfaction of the standard three-element test” or “alternative route” for proving service connection). Based on the foregoing, and resolving reasonable doubt in the Veteran’s favor, the Board finds that the criteria for presumptive service connection for bilateral sensorineural hearing loss, namely, the onset of “chronic” symptoms in service, under 38 C.F.R. § 3.303(b), have been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As presumptive service connection is being granted based on the onset of chronic symptoms in service under 38 C.F.R. § 3.303(b), there is no need to discuss entitlement to service connection on a direct or any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C. §7104. 2. Service Connection for Tinnitus The Veteran generally contends that tinnitus had its onset during service and was the result of in-service noise exposure from working as an aircraft mechanic. See January 2014 Notice of Disagreement. The Board finds that the Veteran currently has tinnitus. The January 2013 VA audiometric examination report reflects a diagnosis of tinnitus. In addition, the Veteran has credibly reported that he has tinnitus on several occasions. See July 2010 Private Treatment Records; January 2013 VA Examination (indicating that the Veteran reported having tinnitus symptoms for 15 to 20 years); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (“ringing in the ears is capable of lay observation”). As discussed above, the Board finds that, based on both medical and legal authority applied to the facts of this case, the Veteran was exposed to acoustic trauma during service that caused permanent auditory nerve or inner ear damage, which resulted in the now service-connected bilateral sensorineural hearing loss. Because the Veteran sustained nerve damage that caused the service-connected sensorineural hearing loss, by necessary logical inference under the facts of this case that include no other loud noise exposures or risks for tinnitus, the same auditory nerve damage to the inner ear caused the bilateral tinnitus. Such tinnitus is a permanent disability that was incapable of actual improvement of the nerve damage because tinnitus either progresses or remains the same (i.e., progression may be prevented), while restoration (i.e., improvement) of tinnitus that was caused by acoustic trauma is not medically possible. See Fountain, 27 Vet. App. 258; VA Training Letter 10 02. While the January 2013 VA examination, the examiner opined that the Veteran’s tinnitus is less likely than not the result of military service because no hearing loss was shown at separation from active duty and no report of tinnitus was found in the service medical records, the VA examiner’s negative opinion is based upon an inaccurate factual premise of no hearing loss during service. The accurate facts are that hearing loss was already shown during service, as high frequency sensorineural hearing loss was diagnosed at the April 1974 service separation examination. For this reason, the purported opinion as to the etiology of tinnitus is of no probative value on the question of relationship of tinnitus to service. See Reonal. 5 Vet. App. at 461. As there is no other competent medical opinion to the contrary, and no other suggestion of loud noise exposure or other risk factors outside of service, the Board will resolve reasonable doubt in the Veteran’s favor to find that service connection for tinnitus is warranted as directly incurred in service. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303(a), (d). As service connection has been granted on a direct basis, there is no need to discuss entitlement to service connection on a presumptive or any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C. § 7104. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Danielle Costantino, Associate Counsel