Citation Nr: 21003784 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 17-50 608 DATE: January 22, 2021 ORDER Service connection for bilateral sensorineural hearing loss is granted. Service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran sustained acoustic trauma during service. 2. The Veteran currently has bilateral sensorineural hearing loss (hearing loss) to the requirements of 38 C.F.R. § 3.385. 3. The acoustic trauma caused the hearing loss. 4. The Veteran currently has tinnitus. 5. The acoustic trauma caused the tinnitus. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for hearing loss have been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active duty service from November 1965 to September 1968. The instant case is on appeal from a Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The Board of Veterans’ Appeals (Board) acknowledges that the representative requested remand to consider evidence that was added to the claims file after completion of the Statement of the Case. The Board finds that there is no prejudice to the Veteran in declining to remand the case as this decision grants all benefits sought in full. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on the Department of Veterans Affairs (VA) to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). The Board finds that the duties to notify and to assist have been met. Additionally, the instant case grants all benefits sought, so no further discussion of the duties to notify and to assist is warranted. Service Connection Direct Service Connection Service connection can be granted for a disability resulting from 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 In this case, two disorders at issue, hearing loss and tinnitus, are a “chronic disease” listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. See Fountain v. McDonald, 27 Vet. App. 258 (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); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For these reasons, 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 Hearing Loss The Veteran contends that he now has hearing loss that stems from acoustic trauma sustained during service while working on airborne radar along the flight line and in a repair shop. See, e.g., September 2017 VA Form 9 Addendum. The evidence demonstrates in-service acoustic trauma. VA has previously recognized acoustic trauma due to the Veteran’s Military Occupational Specialty (MOS) as an airborne radar technician. See July 2016 Rating Decision. The Veteran served in Vietnam for a year and spent most of the time testing and aligning the equipment in the aircraft along a runway. A September 2017 Opinion by Dr. R.H shows the Veteran’s reports of being subjected to constant turbojet engine noise of military aircraft that were landing, taking off, or performing engine preflight testing; that he occasionally had to work in a maintenance van and was subject to the noise of the “screaming” radar cooling fans; that he was exposed to acoustic trauma while performing similar tasks stateside; and in-service acoustic trauma. The Veteran has a current bilateral hearing loss disability to the degree required under 38 C.F.R. § 3.385 to be considered a disability. Hearing loss for VA purposes exists when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater or when the auditory threshold of at least three of the same 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. A May 2016 VA examination report shows the right ear measured at 25 decibels at 500 Hertz, 40 decibels at 1000 Hertz, 70 decibels at 2000 Hertz, 80 decibels at 3000 Hertz, and 1000 decibels at 4000 Hertz, with a speech recognition score of 92 percent. The left ear was measured at 20 decibels at 500 Hertz, 40 decibels at 1000 Hertz, 80 decibels at 2000 Hertz, 90 decibels at 3000 Hertz, and 95 decibels at 4000 Hertz. The present hearing loss disability requirement of 38 C.F.R. § 3.385 is met in both ears, as there are frequencies at 40 decibels or greater and at least three frequencies are 26 decibels or greater (either one of which would have been sufficient in itself). The remaining question is whether there is a nexus between the in-service acoustic trauma and the present hearing loss. The evidence does not need to show hearing loss existed any time in service, including on the service separation examination. A veteran can establish the required nexus between current hearing loss disability and military service if the veteran can show that the hearing loss disability resulted from the acoustic trauma. See Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The weight of the evidence, lay and medical, is at least in equipoise as to the existence of a nexus between the in-service acoustic trauma and the present hearing loss. The Veteran has provided a September 2017 Private Opinion by audiologist Dr. R.H. Dr. R.H. knows the Veteran from treating his hearing loss and knows his military history through speaking with him about it. Dr. R.H. noted that it is a “well-known fact” that permanent bilateral hearing loss is caused by excessive noise over an extended period of time. Based on this information, Dr. R.H. opined that the Veteran’s hearing loss was caused in part during service in Vietnam. Resolving reasonable doubt in favor of the Veteran as to this element of service connection, the opinion from Dr. R.H. places the nexus requirement for service connection for hearing loss at least in equipoise. Resolving reasonable doubt in favor of the Veteran, the Board finds that there is a nexus between the in-service acoustic trauma and the current hearing loss disability, which meets the requirements of 38 C.F.R. § 3.385. For these reasons, service connection for bilateral hearing loss is granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As service connection is being granted on a direct theory of entitlement, chronic disease presumptive service connection theories will not be addressed. The Board recognizes that there is a negative nexus opinion, but that nexus opinion relied on a faulty premise, namely, it required evidence of hearing loss immediately at service separation. Hearing loss in service or at service separation cannot be a requirement for service connection. VA legal authority provides that service connection can be granted for any disease diagnosed after discharge that was incurred in service. 38 C.F.R. § 3.303(d); Hensley v. Brown, 5 Vet. App. 155, 159 (1993). 2. Service Connection for Tinnitus The Veteran contends that the in-service acoustic trauma also caused tinnitus. The lay and medical evidence shows a current disability of tinnitus. During the May 2016 VA examination, the Veteran reported that he had symptoms of tinnitus. Tinnitus can be reported by a lay individual. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002) (explaining that a veteran is competent to testify to in-service acoustic trauma, in-service symptoms of tinnitus, and post-service continuous symptoms of tinnitus “because ringing in the ears is capable of lay observation”). Accordingly, the present disability requirement is met. (Continued on the next page)   As present disability is met and in-service acoustic trauma has already been established, the only remaining question is whether there is a relationship or nexus between the in-service acoustic trauma and the current tinnitus. The Board finds that the weight of the evidence, lay and medical, is at least in equipoise for the existence of a nexus between the present disability and the acoustic trauma. Dr. R.H. opined that tinnitus can be caused by loud bursts of noise, such as explosions. Dr. R.H. noted that the Veteran did not report tinnitus prior to his tour in Vietnam. As a result, Dr. R.H. opined that the Veteran developed tinnitus while serving in Vietnam. Resolving reasonable doubt in favor of the Veteran, the Board finds that there is a nexus between the in-service acoustic trauma and the current tinnitus. For these reasons, service connection for tinnitus will be granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As service connection is being granted on a direct theory of entitlement, chronic disease presumptive service connection theories will not be addressed. 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.