Citation Nr: 21067353 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 19-06 919 DATE: November 4, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. REMANDED Entitlement to a total disability rating based upon individual unemployability (TDIU) due to the Veteran's service-connected disabilities is remanded. FINDINGS OF FACT 1. The Veteran has bilateral sensorineural hearing loss. 2. Bilateral sensorineural hearing loss had its onset in service. 3. There are no intercurrent causes to which Veteran's bilateral sensorineural hearing loss can be clearly attributed. CONCLUSIONS OF LAW 1. The criteria to establish service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1112, 1113, 1131, 1137, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from January 1968 to April 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision (RD) of a Regional Office (RO) of the Department of Veterans Affairs (VA) in St. Louis, Missouri denying Veteran's claim for bilateral hearing loss and tinnitus and granting service connection for posttraumatic stress disorder (PTSD). In a September 2019 decision, the Board granted service connection for tinnitus and denied service connection for bilateral hearing loss. In July 2020, the United States Court of Appeals for Veterans Claims (CAVC) granted a joint motion for partial remand due to the Board's failure to consider the Veteran's arguments and treatise in the September 2019 decision. In a December 2020 decision, the Board remanded the issue of bilateral hearing loss in addition to the issue of entitlement to a total disability rating based on individual unemployability (TDIU). The RO issued a May 2021 supplemental statement of case (SSOC) denying the claims for bilateral hearing loss and TDIU. The Board remanded the claims again in July 2021 and the RO issued an August 2021 SSOC continuing the earlier denial of service connection for bilateral hearing loss and TDIU. This appeal has been advanced on docket pursuant to 38 C.F.R. §§ 20.900(c) (2017); 38 U.S.C. § 7107(a)(2) (2012). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship also known as a "nexus" between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). For chronic diseases manifestation during service or within 1-year post-service or a showing of continuity of symptomatology may serve to satisfy the nexus element. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran contends that his bilateral hearing loss began in service due to exposure to hazardous noise he experienced as a jet engine mechanic and from mortar, rocket and small arms fire during combat while serving in Vietnam. See May 2021 and February 2015 Correspondence. The Veteran stated that while stationed at Phan Rang AB in Vietnam, he was given over 200 assignments as an augmentee which required him to support base security, including the perimeter and flight-line in both bunkers and towers, from threats and active enemy attacks. Id. The Veteran's DD-214 and military personnel record indicate that the Veteran served in Vietnam in a combat zone. See DD-214 and January 2015 Military Personnel Record. The Board finds that the Veteran's statements, supported by his DD-214 and military record, implicate the combat presumption under 38 U.S.C. § 1154(b). The combat presumption lowers the evidentiary burden for combat veterans to show proof that they incurred their disability or injury in service. Id. In the case of a combat veteran, not only is the combat injury presumed, but so is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). To establish service connection, however, there must be the evidence of a current disability and a causal relationship between the current disability and the combat injury. Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 1. Entitlement to service connection for bilateral hearing loss The Veteran is seeking entitlement to service connection for bilateral hearing loss. The Veteran was stationed in Vietnam and was exposed to hazardous noise both as a jet engine mechanic and during combat. The Board finds that the Veteran has a current disability of bilateral hearing loss. During a February 2021 VA examination, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 30 40 70 75 LEFT 20 25 50 70 70 The speech recognition score using the Maryland CNC Test revealed speech recognition ability of 96 percent in the right ear and 94 percent in the left ear. For VA purpose, impaired hearing will be considered a disability when the auditory threshold on any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the February 2021 VA examination report reveals puretone thresholds in excess of 40 decibels in the right ear at 3000Hz and 4000Hz, and in excess of 40 decibels in the left ear at 2000Hz, 3000Hz and 4000Hz. The Board finds the evidence establishes a current disability of bilateral hearing loss. See 38 C.F.R. § 3.385. The February 2021 VA examination also indicates the Veteran's hearing loss is sensorineural in nature. VA considers sensorineural hearing loss an "other organic diseases of the nervous system" included among chronic diseases. 38 C.F.R. § 3.309(a). Such chronic diseases may be service connected on a presumptive basis if shown as "chronic" during service, manifested to a compensable degree in a specified period after service, or productive of continuous symptomatology since service. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 38 C.F.R. § 3.303(b), 3.307, 3.309. 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. See 38 C.F.R. § 3.303 (b). Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Id. As the Veteran is entitled to the combat presumption, his bilateral hearing loss disability due to his in-service combat injury is presumed. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). Therefore, the Board finds that the Veteran's bilateral hearing loss was "chronic" in service. Resolving reasonable doubt in the Veteran's favor, the Board finds that the symptoms associated with bilateral sensorineural hearing loss were "chronic" in service and warrant presumptive service connection for bilateral hearing loss under 38 C.F.R. § 3.303(b). There is no evidence of record identifying an intercurrent cause of the Veteran's bilateral hearing loss. Both the February 2021 and May 2015 VA examiners opined the Veteran's hearing loss was not due to service because he did not have a significant permanent shift in hearing thresholds between his entrance and separation examinations and his service treatment records (STRs) were silent for reports of treatment or symptoms of hearing loss. However, both noted noise exposure was conceded and the February 2021 examiner stated that the relationship between noise exposure, auditory damage and hearing loss is well-established. See February 2021 VA Examination. As presumptive service connection based on chronicity is being granted, there is no need to discuss entitlement to service connection on 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. Therefore, the Board finds that, affording the Veteran the benefit of the doubt, his bilateral hearing loss is due his active military service. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection for bilateral hearing loss is granted. REASONS FOR REMAND 1. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to the Veteran's service-connected disabilities In his February 2021 application for increased compensation based on unemployability, the Veteran stated that his bilateral hearing loss prevented him from maintaining substantially gainful employment. However, in the decision above, the Board granted service connection for bilateral hearing loss and that disability has not received a disability rating. Therefore, the Board finds the issue of entitlement to TDIU is inextricably intertwined with the claim for the Veteran's hearing loss. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matter is REMANDED for the following action: 1. After a rating decision is issued implementing the award of service connection for bilateral hearing loss, readjudicate entitlement to a TDIU. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Aubee, 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.