Citation Nr: 21069686 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 15-37 817 DATE: November 19, 2021 ORDER Service connection for bilateral hearing loss as secondary to the service-connected tinnitus disability is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran's hearing loss is aggravated by his service-connected tinnitus disability. CONCLUSION OF LAW The criteria to establish entitlement to service connection for bilateral hearing loss as secondary to the service-connected tinnitus disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served as a Marine Corps Reservist and in the Army National Guard from December 1998 to October 2011, with periods of active duty from January 1999 to June 1999, February 2001 to October 2001, April 2005 to June 2006, June 2007 to July 2008,and March 2009 to April 2010. These matters come before the Board of Veterans' Appeals (Board) on appeal of an October 2014 Department of Veterans Affairs (VA) rating decision. The Board remanded the claim for bilateral hearing loss to the Agency of Original Jurisdiction (AOJ) in September 2018. In June 2020, the Board denied the claim for service connection for bilateral hearing loss and found that the Veteran's hearing loss disability pre-existed service entrance but did not worsen therein beyond its natural progression. The Veteran timely appealed the Board's June 2020 decision to the U.S. Court of Veterans Appeal (Court), resulting in a July 2017 Joint Motion for Remand (JMR) by the Parties to the JMR (the Veteran and the Secretary of Veterans Affairs). A Court Order remanded the matter for compliance with the instructions in the JMR. Specifically, the JMR indicated that the Veteran should have been presumed sound at service entrance because the frequencies noted in the audiogram result did not meet the VA criteria to be considered a hearing loss disability. See McKinney v. McDonald, 28 Vet. App. 15 (2016). The case has been returned to the Board for readjudication. Service Connection Laws and Regulations 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. §§ 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). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) (2020) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310 (a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Hearing Loss The Veteran's claim for service connection for bilateral hearing loss is being granted on a secondary basis. A review of the record shows that the Veteran served for a total of 11 years, with 4 years of active-duty service. The Veteran served in combat on various occasions and was awarded the Purple Heart, in addition to other decorations, medals, and badges. The Board finds that the Veteran has a bilateral hearing loss disability for VA compensation purposes. See August 2014 VA audiological examination report (showing auditory thresholds at 500 to 3000 Hertz at 30 decibels or greater in the right ear and auditory thresholds at 500 to 2000 Hertz at 30 decibels or greater in the left ear); see also 38 C.F.R. § 3.385. Next, the Veteran has been awarded service connection for tinnitus based on his in-service noise exposure during combat. See October 2014 rating decision. The Board further finds that the evidence is at least in equipoise as to whether the Veteran's hearing loss is aggravated by his service-connected tinnitus disability. During the August 2014 VA examination, the Veteran reported that his tinnitus made it very difficult for him to concentrate. In a May 2013 VA audiology assessment note, the Veteran complained of both hearing loss and tinnitus and stated that he experienced tinnitus in both ears, occurring 26-50% of the time. The ringing in both ears was noted to be of "moderate" severity and was noticeable even in the presence of background or environmental noises. The Veteran specifically indicated that his tinnitus was most problematic when the ringing was present during conversation. The Veteran has specifically reported that he has great difficulty hearing others, especially when background noise is present. See Veteran's VA form 9 dated in October 2015. In Ward v. Wilkie, the United States Court of Appeals for Veterans Claims held that, for secondary service connection, "aggravation" need not be permanent in nature. 31 Vet. App. 233, 241-42 (2019). (Continued on the next page) Here, the Board finds that the Veteran's moderate tinnitus disability reasonably aggravates his hearing loss disability, especially in the presence of background noise and during conversation. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds the criteria to establish service connection for bilateral hearing loss as secondary to the service-connected tinnitus disability are met. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Casadei, 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.