Citation Nr: 21067085 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 19-02 624 DATE: November 3, 2021 ORDER Service connection for bilateral hearing loss is granted. FINDINGS OF FACT 1. The Veteran has a current disability of bilateral sensorineural hearing loss. 2. The Veteran was exposed to loud noise during service. 3. The current hearing loss is causally connected to the loud noise exposure during service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for 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. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army during Peacetime from March 1961 to March 1964. The Veteran filed a claim for hearing loss and tinnitus in July 2018. Service connection for tinnitus was granted in an October 2018 Rating Decision. Service connection for hearing loss was denied in a November 2018 Rating Decision. The Veteran filed a timely appeal, and so the November 2018 Rating Decision is the basis for the current decision. Service Connection for Bilateral Hearing Loss is Granted. 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. Sensorineural hearing loss (as an organic disease of the nervous system) is a "chronic" disease 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 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. In this case, the Veteran contends that there was loud noise exposure during service. He reports that he began to lose his hearing during service, and has had poor hearing ever since service. See November 2018 Notice of Disagreement; January 2019 Form 9. The Board finds that the Veteran has a current disability of bilateral sensorineural hearing loss. A VA examination in October 2018 records hearing loss disability for VA purposes (38 C.F.R. § 3.385) and the examiner assessed sensorineural hearing loss. The evidence shows that the Veteran was exposed to hazardous noise during service. In the same October 2018 examination, the examiner diagnosed bilateral tinnitus, and opined that the tinnitus was at least as likely as not caused by military noise exposure based on the Veteran's military occupational specialty creating a high probability of exposure to hazardous noise. VA granted service connection for tinnitus. VA treatment records in April 2002 and September 2018 show the Veteran reported a consistent history (for treatment purposes) of exposure to excessive noise during service. After weighing the evidence, lay and medical, the Board finds that the evidence is at least in equipoise on the question of whether the current hearing loss disability is causally connected to the loud noise exposure during service. The VA examiner, despite opining that the tinnitus was due to noise exposure during service, reasoned that, because the separation audiometric examination was normal, the current hearing loss was not connected to service. The Board finds that this purported opinion rests on an inaccurate factual assumption that hearing was normal, when there was a 25 dB hearing loss at the 4000 Hertz range in one ear, which is outside the normal hearing range for VA purposes. Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (citing medical authority to recognize that the threshold for normal hearing is from zero to 20 decibels). This factual inaccuracy renders the purported nexus opinion of no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that an opinion based upon an inaccurate factual premise has no probative value). The VA examiner's finding that the tinnitus was due to noise exposure during service suggests that the service-connected tinnitus was due to nerve damage in the inner ear from acoustic trauma. The fact that VA has found the tinnitus to have been caused by in-service loud noise exposure strongly suggests there was nerve damage in the inner ear caused by acoustic trauma in service. Similar to tinnitus, sensorineural hearing loss is linked with nerve damage that most often occurs "when the tiny hair cells in the cochlea are injured." Fountain v. McDonald, 27 Vet. App. 258, 266 (2015). In Fountain, the Court noted that chronic sensorineural hearing loss, as an organic disease of the nervous system, was due to a problem in the inner ear or in the auditory nerve between the inner ear and the brain, and was commonly caused by chronic exposure to excessive noise, in addition to age-related hearing loss. The Court noted that chronic sensorineural hearing loss caused by acoustic trauma resulted in damage to the inner ear and qualified as an organic disease of the nervous system under 38 C.F.R. § 3.309. Because the Veteran sustained nerve damage that caused the service-connected tinnitus, by necessary logical inference, the Veteran sustained the same nerve damage to the inner ear that caused the current hearing loss. The Board finds that, based upon both medical and legal authority, the in-service acoustic trauma caused permanent nerve damage to the auditory nerve or inner ear, which denotes the onset of the current hearing loss in service. Such hearing loss is a permanent disability that was incapable of actual improvement of the nerve damage because such hearing loss either progresses or remains the same (i.e., progression may be prevented), while restoration (i.e., improvement) of hearing loss that was caused by acoustic trauma is not medically possible. See Fountain at 266 (discussing nerve damage to the inner ear for sensorineural hearing loss). Resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for direct service connection for hearing loss 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.