Citation Nr: 18157516 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 16-58 344 DATE: December 13, 2018 ORDER Service connection for tinnitus is granted. Service connection for left ear hearing loss is granted. Service connection for right ear hearing loss is denied. FINDINGS OF FACT 1. The Veteran served on active duty in the United States Air Force from April 1986 to April 1990. 2. The Veteran had noise exposure in service; tinnitus and left ear hearing loss have been continuous since service. 3. The Veteran does not have right ear hearing loss for VA purposes. CONCLUSIONS OF LAW 1. Tinnitus was incurred in service. 38 U.S.C. §§ 1110, 1116, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. Left ear hearing loss was incurred in service. 38 U.S.C. §§ 1110, 1116, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1131, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran is currently seeking service connection for tinnitus and bilateral hearing loss. Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may also be granted on a presumptive basis for diseases listed in § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Both tinnitus and hearing loss are recognized by VA as “chronic diseases” under 38 C.F.R. § 3.309(a), such that the presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). As to the current appeals, hearing loss is considered a disability for VA purposes when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz (Hz) is 40 decibels or greater; when the thresholds for at least three of these frequencies 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. During December 2015 VA examination, testing results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 15 30 20 15 LEFT 85 85 50 35 20 Further, speech recognition scores were 100 percent for the right ear and 72 percent for the left ear. The claims file, inclusive of VA treatment records, does not include additional audiometric testing for consideration. Thus, based on the above results, the Veteran has not demonstrated right ear hearing loss per VA regulations during the pendency of this appeal. In the absence of a current disability, further analysis into the in-service injury or nexus elements is rendered moot and the appeal must be denied. However, the above examination results establish left ear hearing loss in accordance with VA regulations. Further, the December 2015 VA examiner diagnosed the Veteran with tinnitus, which is further noted throughout VA treatment records. Accordingly, the first element of service connection – a current diagnosis – has been met with respect to tinnitus and left ear hearing loss. Next, the evidence supports a finding of in-service acoustic trauma and an acoustic injury. During his VA examination and in multiple lay statements, the Veteran has testified as to the in-service noise exposure he experienced during his duties as an aircrew member. Additionally, the Veteran has reported an in-service injury which occurred when his aircraft suddenly lost altitude, causing the cabin pressure to change dramatically and his ears to “feel complexity full and hurt painfully.” In this respect, a veteran is competent to report that which he perceives through the use of his senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Further, the Veteran’s statements are consistent with the nature of his service, as personnel records reflect his military occupational specialty as a strategic aircraft maintenance specialist, which has a high probability of noise exposure. His testimony is well-documented and consistent throughout the record, and there is no evidence which tends to contradict his recollections. As such, the second element of service connection has been met with respect to tinnitus and left ear hearing loss. Finally, as to continuity, the Veteran has indicated that both his hearing loss and tinnitus onset during service. Specifically, he reported to the December 2015 VA examiner that his tinnitus onset during the in-service aircraft incident and has continued since that time. A December 2016 representative’s statement further identifies the onset of his hearing loss as during active duty. While there is an absence of complaints or treatment for tinnitus or hearing loss for many years after service separation, the Board has resolved reasonable doubt in his favor and finds that the Veteran had continuous symptoms of left ear hearing loss and tinnitus since service separation and thus meets the requirements of presumptive service connection under 38 C.F.R. § 3.303(b). In this respect, the Board notes that the December 2015 VA examiner provided a negative nexus opinion regarding the Veteran’s tinnitus and hearing loss. However, the Board does not need to reach the weight assignable to the VA opinion because service connection is granted on a presumptive basis under 38 C.F.R. § 3.303(b) for the “chronic” disease of hearing loss (38 C.F.R. § 3.309(a)) based on a finding of “continuous” symptoms since service rather than on direct service connection. In sum, there is evidence of acoustic trauma in-service and continuous symptoms of tinnitus and left ear hearing loss since that time; therefore, these disabilities are presumed to have been incurred in service and these appeals are granted. Because the Board is granting service connection on a presumptive basis based on continuous symptoms since service separation, all other service connection theories are rendered moot. Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Evan Deichert Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Kovarovic, Associate Counsel