Citation Nr: 20007904 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 13-12 531 DATE: January 30, 2020 ORDER Service connection for left ear hearing loss is granted. REMANDED Entitlement to a compensable initial rating for right ear hearing loss. FINDINGS OF FACT 1. The Veteran had active service from January 1962 to January 1965. 2. Left ear hearing loss has been continuous since service. CONCLUSION OF LAW Left ear hearing loss was incurred in service. 38 U.S.C. §§ 1110, 1116, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran claimed entitlement to service connection for bilateral hearing loss in October 2011. A February 2012 rating decision granted service connection for right ear hearing loss with a noncompensable (0 percent) rating and denied service connection for hearing loss in the left ear. Service connection may be granted directly as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a current 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 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. Hearing loss is recognized by VA as a “chronic disease” under 38 C.F.R. § 3.309 (a); therefore, 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). Turning to the evidence, hearing loss as defined by VA regulations was found in the January 2012 VA examination. 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. In January 2012, testing results were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 20 30 50 65 70 Speech audiometry revealed speech recognition ability of 68 percent in the left ear. Thus, the Veteran has a hearing loss disability in the left ear. Next, the evidence supports a finding of in-service acoustic trauma. The Veteran asserts that he experienced in-service noise exposure from artillery. 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, during which his military occupational specialty (MOS) was Field Artillery. In addition, there is no evidence of record which tends to contradict his assertions. As such, the second element of service connection has been met. As to continuity, the Veteran testified in April 2014 that he had had hearing problems since service. Thus, while there is an absence of complaints or treatment for hearing loss for many years after service separation, the Board has resolved reasonable doubt in his favor and finds that he had continuous symptoms of hearing loss since service separation and meets the requirements of presumptive service connection under 38 C.F.R. § 3.303(b). The January 2012 VA examiner opined that the Veteran’s left ear hearing loss was less likely as not a result of service, finding that there was a lack of significant threshold shifts in service for that ear. Even so, the Board does not need to determine the probative value of the 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 in the left ear (38 C.F.R. § 3.309(a)) based on a finding of “continuous” symptoms of hearing loss since service rather than on direct service connection. In sum, there is evidence of acoustic trauma in-service and continuous symptoms of hearing loss since service; therefore, left ear hearing loss is presumed to have been incurred in service and the appeal is granted. As the Board is granting service connection on a presumptive basis based on continuous symptoms of hearing loss since service separation, all other service connection theories are rendered moot. REASONS FOR REMAND The initial rating assigned to the Veteran’s right ear hearing loss is inextricably intertwined with the grant of service connection for left ear hearing loss as the ears may now be rated together as bilateral hearing loss. Generally, the RO assigns initial ratings to service-connected disabilities. Therefore, the Board remands the right ear hearing loss rating claim so that the RO may do so for the Veteran’s now service-connected left ear hearing loss. The matter is REMANDED for the following action: Issue a rating decision putting into effect the Board’s grant of service connection for left ear hearing loss with consideration of the rating for the already service-connected right ear hearing loss. L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. M. Schaefer, 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.