Citation Nr: 21064169 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 18-20 222 DATE: October 19, 2021 ORDER Service connection for bilateral sensorineural hearing loss (hearing loss) is granted. Service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran sustained acoustic trauma during service. 2. The acoustic trauma led to post-service hearing loss and in-service ringing in the ears (tinnitus). 3. The symptoms of hearing loss and tinnitus were continuous since service separation. 4. The Veteran currently has hearing loss to the requirements of 38 C.F.R. § 3.385 and has tinnitus. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for chronic disease presumptive service connection for hearing loss are met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a), 3.385. 2. Resolving reasonable doubt in the Veteran's favor, the criteria for chronic disease presumptive service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active duty service from November 1969 to August 1971. The instant matters are on appeal from a December 2016 Department of Veterans Affairs (VA) Regional Office (RO) rating decision that denied service connection for hearing loss and tinnitus. The Veteran testified at a July 2021 Board of Veterans' Appeals (Board) hearing before the undersigned Veterans Law Judge. The hearing transcript has been associated with the claims file. Service Connection Legal Authority Direct Service Connection Service connection may be granted for a disability arising 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 incurrent in service. 38 C.F.R. § 3.303(d). Generally, service connection for a disability requires competent 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. Chronic Disease Presumptive Service Connection The Veteran is currently diagnosed with bilateral sensorineural hearing loss and tinnitus. VA treats sensorineural hearing loss as a "chronic disease" for purposes of 38 C.F.R. S 3.309(a); accordingly, 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. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, where, as here, there is evidence of acoustic trauma, tinnitus is considered a "chronic disease" (as an organic disease of the nervous system). See Fountain v. McDonald, 27 Vet. App. 258, 260 (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). Because of this, 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 to the issue of service connection for tinnitus as well. See Walker, 708 F.3d at 1338-40. Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as chronic in 38 C.F.R. § 3.309(a); Walker, 703 F.3d at 1338-40 (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). With a chronic disease shown 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. 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. 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). 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 is Granted. The Veteran testified at the July 2021 Board hearing that he experienced significant acoustic trauma that caused hearing loss that has persisted since service separation. The Veteran explained that he was a generator mechanic in an armored unit and was required to service tanks, that he did not know when the tanks would fire, that a tank next to the one he was servicing sometimes fired while he was working on the other, and that he also had to prepare the 50-caliber machine gun all without hearing protection. See July 2021 Hearing Transcript. A December 2018 private opinion by Ward Hearing LLC indicated a history of hazardous noise exposure from firing ranges for M-14 and M-16 rifles, hand grenades, 30-caliber and 50-caliber machine guns, gasoline generators, M-60 tanks, 105-mm cannons, tank recovery vehicles, 105-mm howitzers, and infiltration course explosions. The Veteran worked as an electrical technician after service separation, which did not generate comparable hazardous noise exposure. See December 2018 Private Opinion. The Military Occupational Specialty of generator mechanic has a high probability of noise exposure, which matches the Veteran's statement of actual in-service loud noise exposure. The Veteran testified at the July 2021 hearing that his awareness of hearing issues started soon after service when he noticed that he had difficulty with high-pitched noises, such as young ladies' voices and kids' voices. He stated that he could not hear high-pitched frequencies very well and had to ask what they were saying, and that the hearing loss progressively worsened. Resolving reasonable doubt in favor of the Veteran, the Board finds that symptoms of hearing loss were continuous since service separation, as required for "chronic disease" presumptive service connection pursuant to 38 C.F.R. § 3.303(b). The evidence shows a current hearing loss disability for VA compensation purposes that meets the criteria of 38 C.F.R. § 3.385. One way of meeting the VA hearing loss criteria pursuant to 38 C.F.R. § 3.385 is to have an auditory threshold of 40 decibels or greater in one of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz. In a December 2016 VA examination, the right ear had an auditory threshold of 60 decibels at 3000 Hertz and 65 decibels at 4000 Hertz and the left ear had an auditory threshold of 60 decibels at 2000 Hertz, 65 decibels at 3000 Hertz, and 70 decibels at 4000 Hertz. Accordingly, the present disability requirement is met. Resolving reasonable doubt in the Veteran's favor, the Board finds that the symptoms of hearing loss have been continuous since service separation and that the present disability of hearing loss is met, which meets the criteria for chronic disease presumptive service connection under 38 C.F.R. § 3.303(b). The Board recognizes that there is a nexus opinion against direct service connection; however, as the Board is granting presumptive service connection under 38 C.F.R. § 3.303(b) based on continuous post-service symptoms, the direct service connection theory, and the need for a direct service connection opinion, are rendered moot. See 38 U.S.C. § 7104. 2. Service Connection for Tinnitus is Granted. During the July 2021 Board hearing, the Veteran testified to acoustic trauma, as noted above. The Veteran also testified that he has ringing in the ears that started when he was servicing the tanks around other tanks that were firing and that the ringing in the ears has persisted from that point forward. See July 2021 Hearing Transcript. The lay and medical evidence shows a current disability of tinnitus. During the December 2016 VA examination and during the July 2021 Board hearing, 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"). Resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran was exposed to acoustic trauma while in service and experienced continuous symptoms of tinnitus since service separation, meeting the criteria for chronic disease presumptive service connection for tinnitus based on "continuous" post-service symptoms pursuant to 38 C.F.R. § 3.303(b). Because service connection is being granted on a presumptive basis, 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. 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.