Citation Nr: 20002997 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 18-40 789 DATE: January 14, 2020 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 and sustained acoustic trauma during service. 2. The Veteran has a current disability of bilateral sensorineural hearing loss for VA purposes. 3. Symptoms of bilateral hearing loss were chronic in service and continuous since service separation. 4. The Veteran has a current disability of tinnitus. 5. Symptoms of the current tinnitus have been continuous since service separation. CONCLUSIONS OF LAW 1. Resolving reasonable doubt, the criteria for service connection for bilateral sensorineural hearing loss have been met. 38 U.S.C. §§ 1110, 1112, 1153, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. Resolving reasonable doubt, the criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 1153, 1154(b), 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 May 1967 to July 1967. This matter is on appeal from a March 2016 rating decision issued by the Regional Office (RO). Notwithstanding the adjudication of this case under an aggravation theory of service connection, the Board finds that the Veteran did not in fact have preexisting bilateral hearing loss and bilateral tinnitus; therefore, the case is one for direct service connection, not aggravation. See McKinney v. McDonald, 28 Vet. App. 15 (2016) (holding that where a veteran's hearing loss did not meet VA's definition of a “disability” for hearing loss under 38 C.F.R. § 3.385, the veteran was entitled to the presumption of soundness under 38 U.S.C. § 1111 (2012)). Since hearing loss and tinnitus were not “noted” at service entrance or examination, the burden shifts to VA to demonstrate by clear and unmistakable evidence both that hearing loss and tinnitus preexisted service and were not aggravated by service. The Board finds that the presumption of soundness has not been rebutted in this case because the evidence is not clear and unmistakable that hearing loss and tinnitus preexisted service. Consequently, this case converts to one for direct service connection. See Wagner v. Principi, 370 F.3d at 1096 (2004). Service Connection Legal Authority 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; 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. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. The Veteran is currently diagnosed with bilateral sensorineural hearing loss and tinnitus, which are organic diseases of the nervous system and considered a “chronic” disease under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. See 38 C.F.R. § 3.309(a); 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 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 90 days or more of active service, and certain chronic diseases, such as sensorineural hearing loss and tinnitus 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 U.S.C. §§ 1101, 1112, 1113, 1137; 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. A 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 evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C. § 1111. Where a veteran's hearing loss did not meet VA's definition of a “disability” for hearing loss under 38 C.F.R. § 3.385, the veteran is entitled to the presumption of soundness under 38 U.S.C. § 1111. See McKinney, 28 Vet. App. 15. A preexisting 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; see Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306. The burdens and evidentiary standard to determine whether conditions noted at entrance into service were aggravated by service are different than the burdens and evidentiary standard to determine whether conditions not noted at entrance into service were aggravated. If a preexisting condition noted at entrance into service is not shown to have as likely as not increased in severity during service, the analysis stops. Only if such condition is shown by an as likely as not standard to have increased in severity during service does the analysis continue. In such cases, the increase is presumed to have been due to service unless there is clear and unmistakable evidence that the increase during service was not beyond the natural progression of the condition. 1. Service Connection for Bilateral Sensorineural Hearing Loss The Veteran contends that he currently has bilateral sensorineural hearing loss. He reports loud noise exposure during service (gunfire and explosions every day). The Veteran contends that the noise exposure during service caused the bilateral sensorineural hearing loss. See March 2017 Notice of Disagreement, July 2018 Form 9. The evidence shows a current bilateral sensorineural hearing loss disability that meets the VA regulatory criteria at 38 C.F.R. § 3.385. A December 2015 VA audiometric examination report shows pure tone thresholds of 40 dB or greater at the frequencies of 500, 1000, 2000, 3000 and 4000 Hz for the right ear, and at the frequencies of 500, 1000, 2000, 3000 and 4000 Hz for the left ear. In addition, the VA examiner diagnosed bilateral sensorineural hearing loss. The May 1967 service enlistment examination noted that the Veteran’s bilateral eardrums had scarred tympanic membranes, but the audiometric results in that examination do not indicate bilateral hearing loss for VA purposes 38 U.S.C. § 3.385. See 38 U.S.C. § 3.385 (“[H]earing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater”); McKinney (holding that where a veteran's hearing loss did not meet VA’s definition of a “disability” for hearing loss under 38 C.F.R. § 3.385, the veteran is entitled to the presumption of soundness under 38 U.S.C. § 1111). After reviewing all the evidence, both lay and medical, the Board finds that the Veteran was exposed to acoustic trauma in service as part of military occupational specialty (MOS) as an Army Transportation Corps. See DD Form 214. The lay and medical evidence is at least in equipoise on the questions of whether symptoms of bilateral hearing loss were chronic in service and continuous since service separation to warrant presumptive service connection under 38 C.F.R. § 3.303(b) as a “chronic” disease. In the June 1967 in service examination, the audiometric results show that the Veteran had bilateral hearing loss for VA purposes, measuring pure tone thresholds of 40 dB or greater at the frequency of 4000 Hz for the right ear, and at the frequencies of 500, 2000, and 4000 Hz for the left ear; thus, the first showing of bilateral sensorineural hearing loss disability, for VA purposes, was in June 1967 while the Veteran was still in service. This evidence is highly suggestive of sensorineural damage in service following the established very loud noise exposure. In addition to the findings of hearing loss in service, the Veteran has credibly reported continuous symptoms of hearing loss since separation from service and prior to filing the instant claim. See July 2007 VA Treatment Records; March 2008 VA Treatment Records; February 2010 VA Treatment Records; July 2012 VA Treatment Records; August 2013 VA Treatment Records; July 2014 VA Treatment Records; December 2015 VA Examination; March 2017 Notice of Disagreement; July 2018 Form 9; September 2019 Statement in Support of Claim. Resolving reasonable doubt in the Veteran's favor, the Board finds that the symptoms associated with bilateral sensorineural hearing loss were both “chronic” in service and “continuous” since service separation to warrant presumptive service connection for bilateral sensorineural hearing loss under 38 C.F.R. § 3.303(b). While there is negative VA examination opinion on the question of direct nexus of current bilateral hearing loss to service, as this claim is being granted on the basis that the bilateral hearing loss is presumed to be related to service, the direct nexus opinion is rendered irrelevant. As presumptive service connection based on chronicity is being granted, there is no need to discuss entitlement to service connection on 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 the tinnitus is related to the loud noise exposure during service. See March 2017 Notice of Disagreement, July 2018 Form 9. The Veteran currently has tinnitus. The December 2015 VA examination reflects a diagnosis for tinnitus. In addition, the Veteran has credibly reported that he has tinnitus in both ears. See July 2018 Form 9 and September 2019 Statement in Support of Claim; Charles v. Principi, 16 Vet. App. 370, 374 (2002) (“ringing in the ears is capable of lay observation”). Moreover, as explained above, the Board finds that the Veteran was exposed to in-service combat noise. The weight of the evidence demonstrates that the tinnitus is related to acoustic noise exposure in service The evidence is in equipoise as to whether the Veteran experienced continuous symptoms of tinnitus in both ears after service separation. In the July 2018 Form 9 and in the September 2019 Statement in Support of Claim, the Veteran competently and credibly testified to symptoms of tinnitus in service and continued symptoms of tinnitus after service separation. While the medical evidence of record is limited, the Veteran has reported continuous symptoms of tinnitus since service separation. See December 2015 VA examination; March 2017 Notice of Disagreement; July 2018 Form 9; September 2019 Statement in Support of Claim. In December 2015, February 2017 and September 2019, VA examiners rendered negative medical opinion’s regarding a nexus of current tinnitus to in-service noise exposure. These opinions pertain only the theory of direct service connection (38 C.F.R. § 3.303(d)), so are not probative in determining presumptive service connection based on the continuity of symptomatology (38 C.F.R. § 3.303(b)) of a chronic organic disease of the nervous system (tinnitus) since service. 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 v. McDonald, 27 Vet. App. 258, 266 (2015) (noting that sensorineural hearing loss and tinnitus are linked with nerve damage that most often occurs “when the tiny hair cells in the cochlea are injured,” commonly by chronic exposure to excessive noise). Resolving reasonable doubt in the Veteran’s favor, the Board finds that the criteria for presumptive service connection for tinnitus, namely, continuous symptoms since service separation, 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 continuous symptoms since service separation 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. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Wasung, 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.