Citation Nr: 21064400 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 17-49 942A DATE: October 20, 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 Veteran currently has hearing loss to the requirements of 38 C.F.R. § 3.385 and tinnitus. 3. The in-service acoustic trauma caused the hearing loss. 4. The tinnitus is proximately due to or the result of the now service-connected hearing loss. 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, 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, as secondary to the service-connected hearing loss, have been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active duty service from February 1968 to December 1971. The instant matters are on appeal from a Department of Veterans Affairs (VA) Regional Office (RO) rating decision that denied service connection for hearing loss and tinnitus. Service Connection Legal Authority 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 competent evidence of (1) the existence of a current disability; (2) the existence of an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. 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). Secondary Service Connection Service connection may be granted for a condition that is caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310. To prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) nexus evidence establishing a connection between the current disability and the service-connected disability, which relates to either causation or aggravation. See id.; Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). 1. Service Connection for Hearing Loss is Granted. The Veteran contends that he has hearing loss that stems from in-service acoustic trauma. See April 2017 Notice of Disagreement. After a review of all the evidence, lay and medical, the Board of Veterans' Appeals (Board) finds that evidence demonstrates in-service acoustic trauma. In a February 2016 Statement in Support of Claim, the Veteran reported that he had a profound history of occupational noise exposure while in service, that he was exposed to constant heavy machinery, flight lines, and jet engines, that his berthing area while deployed was underneath the flight deck and that loud noises penetrated in the berthing area due to the arresting gear catching the aircraft during night operations, and that his work office location was nearby the flight line. The Board finds this statement credible and consistent with the circumstances of the Veteran's service. The evidence is also in equipoise on the question of whether the Veteran has a current hearing loss disability to the degree required under 38 C.F.R. § 3.385. One way of meeting the requirements of 38 C.F.R. § 3.385 is when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater. In a September 2016 Private Audiogram, the left ear measured 40 decibels at 1000 Hertz and 2000 Hertz and 55 decibels at 4000 Hertz, and the right ear measured 40 decibels at 2000 Hertz and 50 decibels at 4000 Hertz. These test results show current hearing loss disability according toe VA standards. The Board recognizes that the results of the April 2016 VA Examination were different, yielding no auditory thresholds that were 40 decibels or greater in either ear or any other results that would meet the requirements of 38 C.F.R. § 3.385. The Board finds no reason to dispute the results of the September 2016 Private Audiogram, so will resolve reasonable doubt in the Veteran's favor to find that the present disability requirement for hearing loss is met. The remaining question is whether there is a nexus between the in-service acoustic trauma and the present bilateral hearing loss disability. 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); see also Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Veteran submitted a nexus opinion from a private provider. In an October 2016 letter, Dr. Julie Berry described the Veteran's history of acoustic trauma, noted that there was no history of ear surgery or ear infections, family history of hearing loss, dizziness, or sinonasal problems, and interpreted the results of the September 2016 Private Audiogram. Dr. Berry concluded that, given the Veteran's history of extensive military noise exposure and the audiometric pattern in the audiogram, it is more likely than not that the majority of the hearing loss is due to excessive military noise exposure. Dr. Berry is an otolaryngologist (specialist in medical and surgical treatment of the head and neck, including the ears, nose, and throat), so is qualified by medical education and training to provide nexus opinions with respect to hearing loss. The Board acknowledges that there is an April 2016 VA opinion that against such nexus of current hearing loss and loud noise during service; however, this opinion is inadequate because it inaccurately assumed as a fact there was no current hearing loss disability per VA standards and provides a legally erroneous rationale that if hearing loss does not occur during service it can never be related to service. With regard to hearing loss per VA standards, the September 2016 Private Audiogram results place the question of current disability in equipoise, and the resolution of reasonable doubt in this case means there is in fact current hearing loss disability. This inaccurate fact by the April 2016 VA examination (of no current hearing loss disability) diminishes the probative value of the purported opinion. The April 2016 opinion's rationale that, given the normal hearing thresholds documented during service and at service separation, the ultra-high frequency hearing loss that exists is less likely as not related to or caused by noise exposure in the military, is legally erroneous. This would mean that, unless the hearing loss occurred already during service, any post-service hearing loss could never be related to service. Such legally erroneous rationale by an examiner cannot be adopted by a VA adjudicator. Rather, the nexus between acoustic trauma and present hearing loss can be found after separation, and the fact that there was normal hearing at service separation is not determinative. See 38 C.F.R. § 3.303(d) ("service connection may be granted for any disease diagnosed after discharge, when all the evidence...establishes that the disease was incurred in service."); Godfrey, 2 Vet. App. at 356. Resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran sustained acoustic trauma during service, that the acoustic trauma in-service caused the present hearing loss, and that the present hearing loss meets the requirements of 38 C.F.R. § 3.385; therefore, the criteria for direct service connection for bilateral sensorineural hearing loss are met. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As service connection is being granted on a direct theory of entitlement, the theory of chronic disease presumptive service connection has been rendered moot. See 38 U.S.C. § 7104. 2. Service Connection for Tinnitus is Granted. The evidence shows that the Veteran has tinnitus. An April 2016 VA Examination reflects the Veteran's report of recurrent tinnitus and the Veteran is competent to report tinnitus. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"). The evidence is at least in equipoise as to whether the tinnitus is proximately due to or the result of the now service-connected hearing loss. See 38 C.F.R. § 3.310. While the VA examiner in April 2016 did not believe the tinnitus was related to service, the VA examiner provided an opinion that the tinnitus was related to the ultra-high frequency hearing loss, which suggests that the VA examiner believed that there was a relationship (nexus) between the hearing loss and tinnitus. The October 2016 Private Opinion by Dr. Berry also associates the tinnitus with the (now service-connected) hearing loss. Resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for tinnitus, as secondary to the now service-connected hearing loss, have been met. 38 C.F.R. §§ 3.102, 3.310. As service connection for tinnitus has been granted on a secondary basis, all other theories of entitlement have been rendered moot. 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.