Citation Nr: 21063174 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 18-06 839 DATE: October 13, 2021 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran has a current disability of hearing loss. 2. The Veteran has a current disability of tinnitus. 3. The Veteran was exposed to acoustic trauma during service. 4. The current hearing loss is causally connected to the acoustic trauma during service. 5. The current tinnitus is causally connected to the acoustic trauma during service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1112, 1131, 1154, 5103, 5013A, 5107; 38 C.F.R. §§ 3.102, 3.159, 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. §§ 1112, 1131, 1154, 5103, 5013A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from November 1960 to May 1961 during Peacetime. The basis of the current appeal is a November 2017 Rating Decision denying service connection for hearing loss and tinnitus. The November 2017 Rating Decisions is the latest in a chain of Rating Decisions denying the issues, with the Veteran supplying new evidence between issuance of each Rating Decision. The first Rating Decision in this chain was issued in April 2016. An earlier February 2013 Rating Decision addressed the same issues, but became final after the Veteran did not a Form 9 in response to a May 2014 Statement of the Case. 1. Service connection for bilateral hearing loss 2. Service connection for tinnitus Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 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). 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. Hearing loss and tinnitus are considered by VA to be "chronic" diseases (other organic diseases of the nervous system) under 38 C.F.R. § 3.309(a); therefore, 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. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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). In addition, the law provides that, where a veteran served 90 days or more of active service, and certain chronic diseases such as hearing loss or tinnitus 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. 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, 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. See 38 C.F.R. § 3.385. The Veteran contends that the hearing loss and tinnitus are caused by exposure to acoustic trauma from the firing of various large and small munitions, as well as artillery truck engines, during service. See September 2016 Veteran's Statement; October 2017 Private Treatment Record. The evidence shows that the Veteran has a current disability of bilateral hearing loss that meets the standards at 38 C.F.R. § 3.385. An August 2021 private medical record shows puretone thresholds in the frequencies of 500, 1000, 2000, 3000, and 4000 Hz were 50, 55, 70, 80, and 90 decibels in the right ear, and 50, 55, 70, 80, and 90 decibels in the left ear. Maryland CNC speech discrimination scores were 36% in the right ear and 32% in the left ear. See August 2021 Private Treatment Record. The evidence shows that the Veteran has a current disability of tinnitus. The Veteran has competently reported experiencing constant ringing in both ears, and private treatment records show a diagnosis of tinnitus. See August 2021 Private Treatment Record. The Veteran was exposed to acoustic trauma during service. The Veteran has credibly reported exposure to various large and small munitions fire during service, including 105mm and 155mm howitzers, grenade launchers, bazookas, machine guns, and small arms fire, and exposure to loud diesel engines. See e.g., January 2018 Form 9. This reported acoustic trauma is consistent with the circumstances and conditions of the Veteran's service, including the military occupational specialty as an artillery crewmember. The DD Form 214 indicates that the Veteran was a sharpshooter attached to an artillery battery. As the Veteran has competently reported exposure to hazardous noise from the munitions and diesel engines, and the DD Form 214 confirms that he was assigned to an artillery battery, the service evidence is consistent with the lay reports of exposure to hazardous noise in service. See 38 U.S.C. § 1154(a). The Board finds that the evidence is at least in equipoise on the question of whether the current hearing loss and tinnitus are causally connected to the acoustic trauma during service. The Veteran has obtained and provided five different private nexus opinions. The favorable opinions include an August 2021 opinion that the hearing loss (and by inference the tinnitus) was the result of in-service noise exposure. The examiner based this opinion on a review of the Veteran's service background, making note of the potential noise exposure levels from service in the artillery, and the Veteran's reports of in-service exposure to rifles, pistols, grenades, generators, artillery, and heavy equipment. The other private medical opinions make essentially the same arguments. Two VA examiners tendered negative nexus opinions between the hearing loss and tinnitus and service. The January 2013 opinion was that it is less likely that the current hearing loss and tinnitus was caused by hazardous noise exposure because the enlistment examination indicated no ear troubles, an April 1961 medical examination noted normal hearing sensitivity, and after service the Veteran reported exposure to hazardous noise from power tools. The January 2017 opinion is also against a nexus, reasoning that hearing records were normal at entrance and separation of military service, with no significant shift in hearing sensitivity during service. The VA examiners also based the opinion on medical research indicating no medical link between acoustic trauma and hearing loss occurring much later. The 2013 examiner implicitly, and the 2017 examiner explicitly, require that the hearing loss and tinnitus have manifested during service. The relevant statutes and regulations do not include such a requirement; therefore, this reason as a basis for a negative nexus is inadequate. These purported opinions would categorically preclude a of nexus of post-service hearing loss to in-service acoustic trauma, no matter how severe, and imposes an extra-legal requirement that the hearing loss disability arise during service. Such extra-legal requirement is contrary to the service connection principles at 38 C.F.R. § 3.303(d), which allows for direct service connection for disability first diagnosed after service when "all" the evidence "establishes that the disability was incurred in service." See also Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993) (holding that evidence of a current hearing loss disability at 38 C.F.R. § 3.385 after service and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss); Godfrey v. Derwinski, 2 Vet. App. 352 (1992). For these reasons, the purported VA nexus opinions are of no probative value. Resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for direct service connection for hearing loss and tinnitus have been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As direct service connection is being granted, there is no need to discuss entitlement to service connection on a presumptive 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. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Charles Plambeck 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.