Citation Nr: A21020179 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 200527-88616 DATE: December 17, 2021 ORDER Service connection for bilateral hearing loss is granted. FINDINGS OF FACT 1. The Veteran has a current disability of hearing loss. 2. The Veteran was exposed to acoustic trauma during service, resulting in nerve damage to the inner ear. 3. The current hearing loss is directly tied to the nerve damage caused by exposure to acoustic trauma in 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. §§ 1110, 1154, 5103, 5013A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1966 to April 1969, including service during the Vietnam Era. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2020 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA). Pub. L. No. 115-55, 131 Stat. 1105 (2017) (to be codified as amended in scattered sections of 38 U.S.C.). This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review dated on or after February 19, 2019. As this case is based on a VA rating decision dated April 2020, this appeal has been considered consistent with the new AMA framework. In May 2020, the Veteran submitted a VA Form 10182 (Decision Review Request: Board Appeal). He elected the "Direct Review" docket, indicating that he did not want a Board hearing and would no submit any additional evidence in support of the appeal. Under the AMA, when a claimant seeks appellate review through the Board's Direct Review docket, the Board only may consider the evidence of record at the time of the Agency of Original Jurisdiction (AOJ) decision on appeal. Pub. Law 115-55 (Aug. 23, 2017), 131 Stat. 1114 (to be codified at 38 U.S.C. § 7113(a)). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, service connection requires (1) the existence of a present disability; (2) in-service incurrence or aggravation of an injury or disease; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). 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 of 500, 1000, 2000, 3000 and 4000 hertz is 40 decibels or greater; or when the thresholds for at least three of these frequencies 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. Certain chronic diseases, including organic diseases of the nervous system, to include sensorineural hearing loss, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With chronic disease shown as such in service (or within the presumptive period under 38 C.F.R. § 3.307, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). 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. Id. However, if chronicity in service is not established or where the diagnosis of chronicity may be legitimately questioned, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). A claimant "can benefit from continuity of symptomatology to establish service connection in the ultimate sense, but only if [the] chronic disease is one listed in 38 C.F.R. § 3.309 (a)." Walker v. Shinseki, 708 F.3d 1331, 1337 (2013). Service connection may nonetheless be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). The Veteran seeks service connection for bilateral hearing loss. The Agency of Original Jurisdiction (AOJ) found that the Veteran has a current diagnosis of bilateral sensorineural hearing loss. See April 2020 Rating Decision. The AOJ also conceded that the Veteran was exposed to hazardous noise based on his military occupational specialty. Id. Accordingly, the only question to be answered is whether the current hearing loss is connected to service, potentially due to the in-service hazardous noise exposure. The Veteran filed a claim for service connection for both hearing loss and tinnitus in June 2019. See VA Form 21-526EZ dated June 2019. The AOJ granted service connection for tinnitus based on exposure to hazardous noise during service in December 2019. The October 2019 VA examiner opined that it was less likely than not that the Veteran's hearing loss was due to exposure to hazardous noise during service. The examiner opined that because there were no noticeable threshold shifts in audiometric examinations performed throughout the Veteran's service, there was no evidence of hearing loss in-service, despite exposure to the hazardous noise. In this same examination, the examiner found that the hazardous noise exposure did cause the current service-connected tinnitus disability. The examiner's opinion regarding the hearing loss is inadequate, as it relies solely on the lack of noticeable threshold shifts in service while ignoring the fact that the etiology of the service-connected tinnitus injury from in-service hazardous noise also causes hearing loss. Similarly, in the April 2020 addendum opinion, the examiner opined that although the Veteran did experience military noise exposure, the evidence does not support that military noise exposure caused hearing loss, as normal hearing was documented at time of separation. The Board notes that the absence of evidence of a hearing loss disability in service is not fatal to a veteran's claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection. See Hensley v. Brown, 5 Vet. App. 155 (1993). Further, the examiners did not discuss the Veteran's lay statements that he observed hearing loss while on active duty in the October 2019 or April 2020 VA addendum opinions. Id.; 38 C.F.R. § 3.303a; see also June 2019 VA Form 21-526EZ. They also did not provide an alternate source of etiology for the Veteran's hearing loss, for example, post-service employment or recreational activities such as hunting. Indeed, neither examination report indicates that the examiner elicited a post-service work or social history from the Veteran. This is further proof that the opinions are not fully informed. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). That VA has found tinnitus to have been caused by in-service loud noise exposure strongly suggests there was trauma to the inner ear caused by acoustic trauma in service. Similar to tinnitus, 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. (Continued on the next page) Thus, 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, 27 Vet. App. 258 (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. J. Kirby Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Booker 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.