Citation Nr: 21000421 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 14-27 585 DATE: January 5, 2021 ORDER Service connection for left ear sensorineural hearing loss is granted. Service connection for right ear sensorineural hearing loss is denied. Service connection for a back disorder is denied. FINDINGS OF FACT 1. The Veteran currently has left ear sensorineural hearing loss to the requirement of 38 C.F.R. § 3.385. 2. The Veteran sustained acoustic trauma during service. 3. There is a nexus between the acoustic trauma during service and the present-day left ear hearing loss. 4. The Veteran does not currently have a right ear hearing loss disability for Department of Veterans Affairs (VA) compensation purposes in accordance with 38 C.F.R. § 3.385. 5. The Veteran has current diagnoses of degenerative disc disease and lumbosacral strain (back disorder). 6. The Veteran had a back injury during service that resulted in a lumbosacral strain that resolved during service. 7. The current degenerative disc disease and lumbosacral strain are not related to the back strain injury during service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for left ear sensorineural hearing loss have been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for right ear sensorineural hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 3. The criteria for service connection for a back disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active duty service from June 1968 to June 1971. The instant case is on appeal from a VA Regional Office (RO) rating decision that, in pertinent part, denied service connection for bilateral hearing loss and denied service connection for a back disorder. The case has been before the Board of Veterans’ Appeals (Board) previously. In August 2019, the Board remanded the case to obtain updated VA examinations and nexus opinions. The requested development was adequately completed on remand and adjudication can proceed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In February 2019, the Veteran testified at a Travel Board hearing at the RO. A transcript of the hearing has been associated with the record. Service Connection Legal Authority Direct Service Connection Service connection can be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 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). Service connection generally requires (1) competent evidence of a current disability; 2) medical or, in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and 3) competent evidence of a nexus between the claimed in-service disease or injury and the current disability. Chronic Disease Presumptive Service Connection Sensorineural hearing loss is seen by VA as a “chronic disease” listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For this reason, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on “chronic” symptoms in service and “continuous” symptoms since service are applicable. Id. 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 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. 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. 38 U.S.C. § §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). 1. Service Connection for Left Ear Sensorineural Hearing Loss Hearing loss for VA compensation purposes is defined by 38 C.F.R. § 3.385. Hearing loss meets the regulatory requirements of 38 C.F.R. § 3.385 when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is at 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies of 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. The Veteran’s left ear heating loss meets all three regulatory measures of current disability at 38 C.F.R. § 3.385. The left ear hearing loss measured 65 decibels at 500 Hertz, 65 decibels at 1000 Hertz, 55 decibels at 2000 Hertz, 60 decibels at 3000 Hertz, and 60 decibels at 4000 Hertz, with speech recognition score of 30 percent. Accordingly, the present disability requirement for the left ear sensorineural hearing loss disability is met. The Veteran sustained acoustic trauma during service, which meets the requirement of an in-service injury. The Veteran’s Military Occupational Specialty of Tanker had a high probability of hazardous noise exposure, and the RO has recognized the presence of acoustic trauma when granting service connection for tinnitus. Reported noise exposure at training exercises and at the tanker range included tank engines, M60s (as tank gunner), helicopters, combat jets flying overhead, 45 pistol, and 105 howitzers (tank guns, especially during firing line exercises). Tank members had to be at their positions inside the tank when the larger guns were firing. The Veteran reported wearing a tanker helmet, but that was more designed for communication than for hearing protection, so only slightly dampened the noise. In addition to the general noise exposure that the Veteran experienced as a result of his MOS, the Veteran reported a noise trauma incident that resulted in the onset of muffled hearing (especially left) and a sea shell-like sounding tinnitus during a training exercise in Germany in 1972. During an ordered cease fire at the tank range, he was outside the tank disposing of misfired rounds. While walking parallel to a company of tanks with the left ear facing toward the tanks, multiple tanks fired several 105 howitzer tank rounds, and his helmet was blown off his head from the concussion of the blast. The Veteran reports everything went blank and he started seeing white dot-like stars, feeling like he was about to lose consciousness. As the Veteran has reported multiple specific loud noise exposures, the MOS is consistent with such loud noise exposures, and VA has already recognized acoustic trauma when granting service connection for tinnitus, the in-service injury requirement is met. Resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for left ear hearing loss based on acoustic trauma is also warranted. The Board notes that the incident in Germany in 1972 resulted in simultaneous hearing loss symptoms (especially to the left ear) and tinnitus symptoms. 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) (noting 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 sensorineural hearing loss. The Board finds that, based upon both medical and legal authority, the in service acoustic trauma caused permanent nerve damage to the auditory nerve or inner ear, which denotes 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. at 266. While an October 2020 nexus opinion purports to say there is no nexus of the current hearing loss to service, the purported opinion is flawed in its factual assumptions and is legally erroneous, so is of no probative value. First, the opinion points to medical factors as an alternative to the cause of hearing loss but does not state that any particular factor is actually pertinent to this Veteran, or that the boilerplate list of factors applies to this Veteran. Second, the opinion is legally erroneous in its conclusion that delayed onset of sensorineural hearing loss is never possible. This categorical denial of nexus of current hearing loss disability to established noise exposure in service is not compatible with the provisions of 38 C.F.R. § 3.303(d), which provide that service connection may be granted for any disease diagnosed after discharge where the evidence shows the current disability was incurred in service. See also Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (holding that when audiometric test results at a veteran’s separation from service do not meet the regulatory requirements for establishing a disability at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service). Resolving reasonable doubt in favor of the Veteran, the Board finds that the requirements for service connection for left ear sensorineural hearing loss are met. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As the Board is granting service connection for left ear sensorineural hearing loss on a direct basis, the chronic disease presumptive basis are rendered moot, so will not be discussed. 2. Service Connection for Right Ear Sensorineural Hearing Loss The right ear hearing loss does not meet the hearing loss disability requirements of 38 C.F.R. § 3.385. Testing during the current claim shows that the right ear tested at 15 decibels for 500 Hertz, 10 decibels at 1000 Hertz, 25 decibels at 2000 Hertz, 35 decibels at 3000 Hertz, and 20 decibels at 4000 Hertz, with a speech discrimination rate of 94 percent. With any claim for service connection (under any theory of entitlement), it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (service connection may be warranted if there was a disability present at any point during the claim period, even if it is not currently present); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (when the record contains a recent diagnosis of disability immediately prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). In this case, the record does not reflect a current right ear hearing loss disability that meets the disability standards of 38 C.F.R. § 3.385. Because none of the audiometric tests or speech recognition tests show a right ear hearing loss disability for VA compensation purposes in accordance with 38 C.F.R. § 3.385, service connection under any theory must be denied. See Brammer, 3 Vet. App. at 223; see also McClain, 21 Vet. App. at 319; Romanowsky, 26 Vet. App. at 289. 3. Service Connection for A Back Disorder The Veteran seeks service connection for a back disorder. The record reflects currenet diagnoses of lumbosacral strain and degenerative disc disease. See March 2014 VA examination; October 2019 VA examination; October 2019 x-ray (noting mild multilevel degenerative change). Accordingly, the current disability requirement is met. The Veteran sustained a back injury in service. The Veteran reported that he was working on a tank and that he slipped off the tank and fell onto his back, resulting in lots of pain. See June 2014 Buddy Statement (describing the fall consistently with the Veteran’s report). Treatment included bedrest, a couple of days off, and pain medication. The service treatment records show a May 1970 Service Treatment Record that notes that the Veteran fell that morning and caught himself with his hands, which then led to complaints of pain in the back. (Continued on the next page)   Although there is a present disability and an in-service injury, the weight of the evidence is against finding a nexus between the two. The Veteran attended a VA examination in October 2019 and the examiner opined that the lumbosacral strain is less likely than not related to military service. The rationale was that the in-service injury during service resolved, there were not continuous symptoms for 49 years after service, including no evidence of back treatment for decades after service. The x-rays at the October 2019 VA examination were within normal limits. Because the weight of the evidence is against a finding of a nexus between the in-service injury and a present-day diagnosis, service connection for a back disorder must be denied. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Smith, 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.