Citation Nr: 21066472 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 16-20 343 DATE: November 1, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDING OF FACT The evidence supports a finding that the Veteran's bilateral hearing loss is related to his service-connected tinnitus. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107(b) (West 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1963 to March 1965. In June 2019, the Board remanded this issue for further development. In June 2020, the Board denied service connection for bilateral hearing loss. The Veteran appealed the denial of the claim to the Court of Appeals for Veterans Claims (Court). Counsel for the Veteran and the Secretary of VA (the parties) filed a June 2021 Joint Motion for Remand (JMR). The parties agreed that the Board's June 2020 denial of entitlement to service connection for bilateral hearing loss should be vacated and remanded because the Board failed to ensure substantial compliance with the June 2019 Board remand order. However, for the reasons discussed below, based on the favorable decision in this case, another remand is not necessary. Service Connection Legal Principles and Regulations Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Pursuant to 38 C.F.R. § 3.303 (b), where a chronic disease such as sensorineural hearing loss is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303 (b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101 (3) or 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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 (Hz) 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 (2017). BILAERAL HEARING LOSS The Veteran contends that his current bilateral hearing loss was caused by noise exposure during his military service based on his military occupational specialty (MOS) as wheeled vehicle mechanic, which included noise exposure from vehicle engines, power tools, small arms qualification, and military aircraft. At the outset, the Board finds the Veteran's bilateral hearing loss meets the requirements of impaired hearing under VA regulations. See October 2019 VA examination report. Thus, the Veteran has satisfied the first element of a current disability for bilateral hearing loss. Also, the Board notes that the October 2019 examiner opined that the Veteran's MOS indicates a very high probability of noise exposure. As such, the Veteran's in-service noise exposure has been established. Therefore, the second element is satisfied. As to the third element of service connection, the Board does not find that it is connected to service, where the medical evidence of record does not establish the requisite nexus. Rather, based on the favorable finding and service connection of the Veteran's tinnitus, the Board finds that the Veteran is entitled to service connection for his bilateral hearing loss. First, the Board acknowledges that the RO granted service connection for tinnitus in May 2015. See May 2015 Rating Decision. Notably, in a May 2015 VA examination report for hearing loss and tinnitus, the VA examiner opined that the Veteran's tinnitus is at least as likely as not related to his military noise exposure. This evidence was utilized to grant the Veteran's claim. Thereafter, based on an examination accomplished in October 2019, a VA examiner opined that the Veteran has a diagnosis of clinical hearing loss, and that the Veteran's service-connected tinnitus is at least as likely as not a symptom associated with his hearing loss. See October 2019 VA Compensation and Pension Examination report. Given the aforementioned, the Board finds that as tinnitus is a symptom of the bilateral hearing loss, which is service connected, logically the Veteran's bilateral hearing loss should also be service connected based on his tinnitus. Accordingly, giving the Veteran the benefit of the doubt based on these unique facts, the claim is granted. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Abdelbary, 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.