Citation Nr: 21068008 Decision Date: 11/08/21 Archive Date: 11/08/21 DOCKET NO. 12-10 781 DATE: November 8, 2021 ORDER Entitlement to service connection for a right ear hearing loss disability is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, a right ear hearing loss disability was shown in active service and there have been subsequent manifestations of this disability during the appeal period. CONCLUSION OF LAW The criteria for service connection for a right ear hearing loss disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(b), 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1974 to August 1977. The case is on appeal from aa May 2011 rating decision. The Board remanded this claim in November 2013, June 2019, November 2020 and July 2021. Service Connection Right Ear Hearing Loss Disability The Veteran has reported the onset of right ear hearing loss during active service. See January 2011 Veteran Statement (stating that his claimed disabilities "started in service [and] have progressively worsened since"); September 2018 VA Form 21-526EZ (noting 1977 as the approximate date bilateral hearing loss began or worsened); June 2019 Veteran Statement (describing in service noise exposure and stating that "the hearing loss in my right ear is real [and] has been so since this time"); December 2020 Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ) (noting the onset of hearing loss as "[s]ince military service, per Veteran"). As relevant to this decision, 38 C.F.R. § 3.85 states "[f]or the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability...when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater." See also McKinney v. McDonald, 28 Vet. App. 15, 25 (2016) (38 C.F.R. § 3.385 "establishes when hearing loss constitutes a disability for entitlement to disability compensation benefits"). The Veteran's service treatment records (STRs) included a November 1974 Report of Medical Examination, which noted the results of audiometric testing. These results, for the right ear, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 35 35 N/A 35 Applying 38 C.F.R. § 3.385, the results of the November 1974 medical examination documented a right ear hearing loss disability for VA purposes. A VA examiner also referenced the results of this exam as showing hearing loss. See July 2021 Hearing Loss and Tinnitus DBQ ("The audiogram dated 11/1974 which indicated a mild loss in both ears"). 38 C.F.R. § 3.303(b) states that: With chronic disease shown as such in service...so as to permit a finding of service connection, 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, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established...there is no requirement of evidentiary showing of continuity. "The plain language of § 3.303(b) establishes a presumption of service connection (rebuttable only by 'clearly attributable intercurrent causes') for a chronic disease which manifests during service and then again 'at any later date, however remote.'" Groves v. Peake, 524 F.3d 1306, 1309 (Fed. Cir. 2008). This provision only applies to certain diseases. See Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013) ("properly interpreted...§ 3.303(b) is constrained by § 3.309(a)...in that the regulation is only available to establish service connection for the specific chronic diseases listed in § 3.309(a)"). One such disease listed in 38 C.F.R. § 3.309(a) is "Other organic diseases of the nervous system." Sensorineural hearing loss is considered by VA to be an "other organic disease of the nervous system" and thus is considered a chronic disease for purposes of 38 C.F.R. § 3.303(b). See Fountain v. McDonald, 27 Vet. App. 258, 263 (2015) ("VA has determined [sensorineural hearing loss] to be 'an organic disease of the nervous system'). Upon review of the Veteran's STRs, and resolving reasonable doubt in the Veteran's favor, the Board finds that a chronic disease of right ear hearing loss was shown during active service. In this regard, as noted, the November 1974 medical examination documented a right ear hearing loss disability for VA purposes. As outlined, pursuant to 38 C.F.R. § 3.303(b), "[w]ith 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." See also Walker v. Shinseki, 708 F.3d 1331, 1335-36 (Fed. Cir. 2013) ("if a veteran can prove a chronic disease 'shown in service,' and there are no intercurrent causes, the manifestation of the chronic disease present at the time the veteran seeks benefits establishes service connection for the chronic disease"). The Veteran was afforded a VA examination in July 2021 and a Hearing Loss and Tinnitus DBQ was completed. Audiometric test results showed a right ear hearing loss disability for VA purposes pursuant to 38 C.F.R. § 3.385. In addition, the examining audiologist noted a diagnosis of "Sensorineural hearing loss (in the frequency range of 500-4000 Hz." As such, this evidence identified a subsequent manifestation of the chronic disease of sensorineural hearing loss during the appeal period. The Board acknowledges that of record are multiple negative VA direct service connection nexus opinions (which includes opinions that have been previously deemed inadequate by the Board). Based on the application of 38 C.F.R. § 3.303(b), however, a nexus is not required in this case. See Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013) ("By treating all subsequent manifestations as service connected, the veteran is relieved of the requirement to show a causal relationship between the condition in service and the condition for which disability compensation is sought. In short, there is no 'nexus' requirement for compensation for a chronic disease which was shown in service"). (Continued on the next page) In sum, resolving reasonable doubt in the Veteran's favor, the Board finds that a right ear hearing loss disability was shown in active service and that there have been subsequent manifestations of this disability during the appeal period. As such, the Board concludes that the criteria for service connection for a right ear hearing loss disability have been met and, in this regard, the Veteran's claim is therefore granted. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.309(a). K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Hoopengardner, 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.