Citation Nr: 21003102 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 19-22 349A DATE: January 19, 2021 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. FINDINGS OF FACT 1. Hearing loss is related to service. 2. Tinnitus originally manifested during service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army from October 1966 to October 1968. These matters come before the Board of Veterans’ Appeals (Board) from a March 2018 rating decision from the Agency of Original Jurisdiction (AOJ). The Veteran had a hearing before the undersigned in January 2021. Service Connection Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C. §§ 1110, 1131. 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) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). An organic disease of the nervous system, which includes sensorineural hearing loss and tinnitus, is a "chronic disease" listed under 38 C.F.R. § 3.309(a). Fountain v. McDonald, 27 Vet. App. 258, 275-76 (2015). Therefore, the provisions of 38 C.F.R. § 3.303(b) 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 during active service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless they are clearly attributable to intercurrent causes. Generally, if a condition noted during active service is not shown to be chronic, then, a "continuity of symptoms" after service is required to establish service connection. 38 C.F.R. § 3.303(b). The Veteran is competent to report that tinnitus was incurred in service and it has existed from service to the present. See 38 C.F.R. § 3.159(a)(2); Charles v. Principi, 16 Vet. App. 370, 374 (2002). The determination of whether a Veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. 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, or 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. 38 C.F.R. § 3.385. Under the "benefit-of-the- doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993). 1. Service connection for bilateral hearing loss and tinnitus The Veteran contends that entitlement to service connection is warranted for bilateral hearing loss and tinnitus, because the Veteran’s Military Occupational Specialty (MOS) of Field Artillery exposed the Veteran to hazardous noise. The Veteran testified before the undersigned that he had no issues with hearing or tinnitus before service. During service he heard helicopters, howitzers, trucks, just constant noise. He had ear protection, but they did not always use it because sometimes they would be around noise without them. After service, he started noticing he had to have the volume on TV louder and ask people to repeat themselves. The Veteran did not recall if hearing loss or ringing started directly in service but also indicated that it was just so loud, he was not sure. The Veteran had a VA audiological examination in March 2018. At the examination he was diagnosed with sensorineural hearing loss for VA purposes due to the following puretone threshold test scores:       HERTZ        500  1000  2000  3000  4000  RIGHT  30 25 65 50 35 LEFT  30 30 65 60 60   The Veteran had Maryland CNC Test scores of 100 percent for the right ear, and 90 percent for his left. The Veteran in his March 2018 VA audiological exam reported that he has recurrent tinnitus, that has gradually gotten worse over the years. Because the Veteran had at least one auditory threshold over 40 decibels as well as more than three thresholds over 26 decibels in the frequencies 500, 1000, 2000, 3000, or 4000 Hertz for both ears, he was diagnosed with bilateral sensorineural hearing loss for VA purposes. He also was noted to have a diagnosis of tinnitus. This satisfies the first of three requirements to establish service connection, a current disability. The VA concedes that the Veteran’s MOS of Field Artillery in service exposed him to hazardous noise. This noise exposure in service satisfies the second prong for service connection, an in-service event. The March 2018 VA examiner’s nexus opinion, based on the Veteran’s having had normal hearing on exit from military service, was negative. The 2018 examiner on the same basis opined that the Veteran’s tinnitus was not at least as likely as not (50% probability or greater) caused by or a result of an event in military service. She determined that the Veteran had normal hearing in service, and a diagnosis of noise-induced tinnitus requires a diagnosis of noise-induced hearing loss. The Veteran was seen in August 2019 for a private audiological evaluation. The examiner noted that the Veteran has a history of noise exposure while serving in the military. He has a complaint of hearing loss and tinnitus. Proper hearing protection was not always available during his service time. He served in the United States Military. The audiological evaluation showed a gradual slope mild to moderate hearing loss with noise notch at 2 KHz AU. Speech Reception Threshold scores were at 40 dB AD and 60 dB AS. Word discrimination scores were at 80% AD and 80% AS which shows the speech response with proper amplification when used. Articulation Index scores were at 38% AD and 23% AS. Additionally, the private examiner opined that it is at least as likely as not that the Veteran’s hearing loss is the result of noise exposure while serving in the military. This positive hearing loss nexus opinion establishes the third prong needed to satisfy service connection. (Continued on the next page)   In this case, there is positive and negative evidence on the issue of whether the Veteran’s current bilateral hearing loss and tinnitus is etiologically related to service. Thus, as there is “an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter,” this is a situation where the benefit of the doubt rule applies. Ashley, 6 Vet. App. at 59; 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. As such, in resolving all reasonable doubt in the Veteran’s favor, service connection for bilateral hearing loss and tinnitus is warranted. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Black, 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.