Citation Nr: 18158167 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 16-12 898 DATE: December 14, 2018 ORDER Service connection for bilateral sensorineural hearing loss is granted. FINDING OF FACT The Veteran currently has bilateral sensorineural hearing loss to an extent recognized as a disability for VA purposes; the Veteran was exposed to loud noise (acoustic trauma) while in service; the Veteran’s current bilateral hearing loss is etiologically related to exposure to acoustic trauma in service. CONCLUSION OF LAW 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. §§ 1112, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, served on active duty from February 1981 to June 1982. Service Connection for Bilateral Sensorineural Hearing Loss Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 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. The Veteran is currently diagnosed with bilateral sensorineural hearing loss (as an organic disease of the nervous system) which is a “chronic disease” 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. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where 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). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as organic diseases of the nervous system, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. For VA purposes, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater, the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz are 26 dB or greater, or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Additionally, the United States Court of Appeals for Veterans Claim (Court) has held that “the threshold for normal hearing is from 0 to 20 dBs [decibels], and higher threshold levels indicate some degree of hearing loss.” See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran asserts that the currently diagnosed bilateral hearing loss is the result of the same in-service noise exposure for which service connection for bilateral tinnitus was granted in the same August 2013 rating decision that is on appeal. See November 2018 Appellate Brief. Initially, the Board finds that the Veteran currently has a bilateral hearing loss disability that meets the VA regulatory criteria at 38 C.F.R. § 3.385. A July 2013 VA examination report shows pure tone thresholds of 40 dB or more at 4000 Hz in the right ear and at 2000 Hz, 3000 Hz, and 4000 Hz in the left ear. The VA examination report conveys that the Veteran was diagnosed with bilateral sensorineural hearing loss. The Board also finds that the Veteran was exposed to loud noise (acoustic trauma) while in service. The DD Form 2014 reflects a military occupational specialty of multichannel communications equipment operator. During the July 2013 VA audiometric examination, the Veteran reported military noise exposure included noise from artillery and tanks. Additionally, the Regional Office (RO) recognized in the August 2013 rating decision that in-service excessive noise exposure has been corroborated in granting service connection for tinnitus. Based on this evidence, the Board finds that in-service acoustic trauma is established. The Veteran contends that the same in-service noise exposure, for which the July 2013 VA examiner opined was sufficient to cause bilateral tinnitus, also caused the current bilateral hearing loss. Similar to tinnitus, sensorineural hearing loss is linked with nerve damage that most often occurs “when the tiny hair cells in the cochlea are injured.” Fountain v. McDonald, 27 Vet. App. 258, 266 (2015) (quoting VA Training Letter 10-02). More specifically, 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 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. Because the Veteran sustained nerve damage that caused the service-connected tinnitus, by necessary logical inference, the Veteran sustained the same nerve damage to the inner ear that caused the current bilateral sensorineural hearing loss. Based upon both medical and legal authority, the Board finds that the in service acoustic trauma caused 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. Notwithstanding the above, the July 2013 VA examiner opined that the Veteran’s hearing loss is less likely than not the result of military service because hearing acuity in both ears were measured to be within normal limits at service separation; however, the rationale underlying the VA examiner’s negative opinion is legally erroneous as hearing loss to a disabling level (38 C.F.R. § 3.385) need not be shown at service separation, so the purported nexus opinion is of no probative value. See 38 C.F.R. § 3.303(d) (service connection may be granted for any disease diagnosed after discharge that was incurred in service); Hensley v. Brown, 5 Vet. App. 155, 159 (1993); Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992) (holding that a veteran may establish the required nexus between current hearing loss disability and the term of military service if he can show that the hearing loss disability resulted from acoustic trauma). Further, the July 2013 VA examiner did not explain why the same in service acoustic trauma that was found to have caused the service-connected tinnitus did not also cause the Veteran’s current bilateral hearing loss; as such, the Board finds the July 2013 VA examiner’s opinion is also of no probative value as it is based on an incomplete and, therefore, inaccurate medical and factual history. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that an opinion based upon an inaccurate factual premise has no probative value). (Continued on the next page)   For these reasons, and resolving reasonable doubt in the Veteran’s favor, the Board finds that the criteria for direct service connection for bilateral sensorineural hearing loss have been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 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 E. Choi, Associate Counsel