Citation Nr: 21001549 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 14-28 686 DATE: January 8, 2021 ORDER Service connection for left ear sensorineural hearing loss is granted. FINDINGS OF FACT 1. The Veteran was exposed to acoustic trauma in service as part of the military occupational specialty (MOS) of cannon crewman. 2. The Veteran has a current disability of sensorineural hearing loss in the left ear. 3. Symptoms of the left ear hearing loss were chronic in service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for presumptive service connection for sensorineural hearing loss in the left ear 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 FINDINGS AND CONCLUSION The Veteran served on active duty from June 1979 to May 1983. This matter is on appeal from a June 2013 rating decision issued by the Regional Office (RO) in Nashville, Tennessee. The Veteran testified in Nashville, Tennessee, at a Board videoconference hearing in October 2018 before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. The issue was previously before the Board in April 2019. The Board issued a remand in order to obtain an updated VA examination because the “last hearing test in 2013 does not show hearing loss that meets 38 C.F.R. § 3.385 criteria, but does show hearing loss that is extremely close to being a disability.” A VA examination was conducted in August 2020. The issue was brought before the Board again in October 2020. In the October 2020 Board decision, the Board found the opinions in the two previous VA examination, conducted in May 2013 and August 2020, were inadequate. The Board remanded the issue to obtain another VA examination opinion. Legal Authority for Service Connection 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. 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. 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. See 38 C.F.R. § 3.303(d). In this case, the disorder at issue, sensorineural hearing loss, is an organic disease of the nervous system and, as such, listed as 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). 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, 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. Service Connection for Sensorineural Hearing Loss in the Left Ear The Veteran contends that the current hearing loss in the left ear is related to the in-service acoustic trauma he experienced as part of the MOS of cannon crewman. The representative has detailed the worsening of hearing loss in service, as indicated by audiometric threshold shifting. After a review of all the evidence, the Board finds that the Veteran was exposed to loud noise in service. The DD Form 214 reflects the Veteran’s MOS was as a cannon crewman, which indicates a high probability of hazardous noise exposure during service. The Board also finds that the Veteran has a current disability of sensorineural hearing loss in the left ear for VA purposes that meets the standards of 38 C.F.R. § 3.385. See August 2020 VA Examination (measuring the Veteran’s speech discrimination at 72 percent in the left ear). The evidence is at least in equipoise on the question of whether hearing loss in the left ear was “chronic” during service. Service treatment records reflect a threshold shift (worsening) in the left ear during service, including hearing loss that is outside the normal limits of hearing. Various audiological tests during service track the progression of the hearing loss during service until it is beyond the normal ranges during service. November 1978 Military Examination (measuring hearing loss in the left ear as follows 15 dB at 500 Hz, 5 dB at 1000 Hz, 10 dB at 2000 Hz, 10 dB at 3000 Hz, 15 dB at 4000 Hz, and 5 dB at 6000 Hz), November 1978 Report of Medical History (The Veteran affirmatively reported that he did not experience hearing loss); December 1980 Audiological Examination (measuring hearing loss in the left ear as follows 10 dB at 500 Hz, 5 dB at 1000 Hz, 5 dB at 2000 Hz, 15 dB at 3000 Hz, 15 dB at 4000 Hz, and 20 dB at 6000 Hz); January 1983 Audiological Examination (measuring hearing loss in the left ear as follows 25 dB at 500 Hz, 20 dB at 1000 Hz, 15 dB at 2000 Hz, 10 dB at 3000 Hz, 10 dB at 4000 Hz, and 10 dB at 6000 Hz). In contrast, the April 1983 service separation audiometric examination report reflecting audiometric test scores of "0"s from 500 Hz to 4000 Hz. See April 1983 Separation Examination (measuring hearing loss in the left ear as follows 0 dB at 500 Hz, 0 dB at 1000 Hz, 0 dB at 2000 Hz, 0 dB at 3000 Hz, 0 dB at 4000 Hz, and 20 dB at 6000 Hz). If testing had actually been conducted, "0"s in almost every audiometric range would indicate the Veteran's hearing actually improved in service, and improved in various threshold ranges, leaving no variance in audiometric test measures; such conclusions are not plausible from such reported numbers. A more likely explanation is that audiometric testing was not actually conducted at service separation. As a result, the Board will place no reliance on the April 1983 audiometric examination’s purported findings. At service entrance, the audiometric test scores ranged from 5 decibels (dB) to 15 dB as reflected on a November 1978 service examination report. The last adequate audiology examination during service, conducted in January 1983, shows threshold shifting of 10 dB at 500 Hz, 20 dB at 1000 Hz, and 5 dB at 2000 Hz. The 25 dB reading at 500 Hz is outside the normal ranges of hearing. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (noting that the threshold for normal hearing is from 0 to 20 decibels). Resolving reasonable doubt in the Veteran’s favor, the Board finds that there was “chronic” hearing loss during service that meets the chronic disease presumptive service connection requirements at 38 C.F.R. § 3.303(b). As presumptive service connection is being granted based on chronic in-service symptoms 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. The Veteran submitted to several VA examinations to assess the hearing loss, all of which rendered negative direct service connection opinions; however, the opinions pertain only to the theory of direct service connection (38 C.F.R. § 3.303(d)), which is mooted by the grant of presumptive service connection (38 C.F.R. § 3.303(b)), so are not probative in determining presumptive service connection based on chronic in-service symptoms. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Costantino, 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.