Citation Nr: 21009387 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 16-54 033 DATE: February 22, 2021 ORDER Service connection for bilateral sensorineural hearing loss is granted. FINDINGS OF FACT 1. The Veteran is currently diagnosed with bilateral sensorineural hearing loss to an extent recognized as a disability for VA purposes. 2. The Veteran was exposed to loud noise (acoustic trauma) while in service. 3. The Veteran experienced “continuous” symptoms of bilateral hearing loss since service separation. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for presumptive service connection for bilateral sensorineural hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1133, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326(a), 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the appellant, had active service from May 1961 to May 1965. This matter came before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. At the outset, the Board will review the procedural history of this matter. Review of the record reflects that the Veteran filed an informal claim for service connection for bilateral hearing loss in February 2011. A formal claim was subsequently filed in March 2011. Service connection for bilateral hearing loss was then denied in an April 2012 rating decision. In July 2012, the Veteran submitted a request for reconsideration of the April 2012 service connection denial on the basis of new and material evidence. Along with the request, the Veteran provided VA with a July 2012 lay statement from his spouse. Per the lay statement, the spouse conveyed witnessing the Veteran’s hearing problems from active service until the present. Such evidence was new and material, and reconsideration by the RO was warranted. See 38 C.F.R. § 3.156(b). Despite the fact that reconsideration was warranted based upon the new and material lay statement, in October 2012 VA sent the Veteran a letter indicating that, while the request for reconsideration was received, no action would be taken unless the Veteran sent new and material evidence (which, as discussed above, had already been sent). No further action was taken by VA until the Veteran filed a claim to reopen service connection for bilateral hearing loss in June 2014. As new and material evidence was received within one year of the April 2012 rating decision denying service connection for bilateral hearing loss, and as the RO failed to readjudicate the claim following the receipt of such new and material evidence, the Board finds that the Veteran’s original claim for service connection remains open, and the Board need not consider whether new and material evidence has been received to reopen the issue of service connection for bilateral hearing loss in the instant decision. Id. The Veteran testified at a January 2021 virtual Board hearing before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). As the instant decision grants service connection for bilateral hearing loss, which is a complete grant as to the issue on appeal, no further discussion of VA’s duties to notify and assist is necessary. Service Connection for Bilateral Hearing Loss Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active 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. 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. 38 C.F.R. § 3.303(d). Sensorineural hearing loss, as an organic disease of the nervous system, is a chronic disease under 38 C.F.R. § 3.309(a). As such, 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 to the issue on appeal. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as “chronic” in 38 C.F.R. § 3.309(a). Walker, 708 F.3d at 1338-40 (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). With a 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. 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. 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). For VA purposes, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater, the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz are 26 dB or greater, or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Additionally, the Court has held that “the threshold for normal hearing is from 0 to 20 dBs [decibels], and higher threshold levels indicate some degree of hearing loss.” See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Initially, the Board finds that the Veteran currently has a bilateral hearing loss disability that meets the VA regulatory criteria at 38 C.F.R. § 3.385. Multiple VA audiometric examination reports show pure tone thresholds of 40 dB or greater at all relevant frequencies in both ears. Further, the report from a February 2020 VA audiometric examination shows speech recognition scores of 80 percent in the right ear and 60 percent in the left ear. Per all three VA examination reports, the Veteran has been diagnosed with bilateral sensorineural hearing loss. As such, the current disability of bilateral hearing loss is established. See 38 C.F.R. § 3.385. Next, the Board finds that the Veteran was exposed to loud noise (acoustic trauma) while in service. The DD Form 214 reflects that during service the Veteran served as a weapon’s specialist. At the January 2021 virtual Board hearing, and elsewhere throughout the record, the Veteran credibly testified to working on aircraft missiles, which regularly took him to the flight line without adequate hearing protection. Excessive noise exposure is consistent with the circumstances, conditions, and hardships of the Veteran’s in service responsibilities as an aircraft weapons specialist. Further, the Board notes that in an April 2020 rating decision, VA granted the Veteran service connection for tinnitus based on in service acoustic trauma. As such, in service acoustic trauma is established. Finally, the Board finds that the weight of the medical and lay evidence of record is at least in equipoise on the question of whether the Veteran had continuous symptoms of bilateral hearing loss since service separation in May 1965. Review of the service treatment records reflect that, upon undergoing hearing testing at service separation in March 1965, the decibel findings were recorded under the old International Standard Organization/American National Standards Institute or (ISO/ANSI) standard. When converted into the current American Standards Association (ASA) standard, the Veteran had right-ear readings of 30 dB at 3000 Hz and 25 dB at 4000 Hz. As discussed above, this indicates that the Veteran had some degree of observable hearing loss in the right ear at service separation. See Hensley, 5 Vet. App. 155, 157. The Board notes that the Veteran received three VA audiometric examinations throughout the course of this appeal, in January 2012, July 2014, and February 2020. In all three instances the VA examiners rendered negative direct service connection opinions. In rendering these negative opinions, all three examiners inaccurately assumed the Veteran’s hearing to be normal bilaterally at service separation; however, such factual assumption of normal hearing at service separation is incorrect because there was some indication of hearing loss outside of normal ranges in the right ear at service separation. Additionally, when rendering the nexus opinions, the opinions did not recognize the accurate fact of continuous symptoms of hearing loss in both ears since service separation. For these reasons, the Board finds the VA opinions to be 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). Per the March 2011 formal claim for service connection, the Veteran advanced that hearing loss symptoms began during service in 1964. Further, the Veteran denied any post-service hazardous noise exposure, either through post-service employment or recreationally. VA received a lay statement from the Veteran’s spouse in July 2012. Per the lay statement, the Veteran and spouse had been together since on or about late-1963, which was during the Veteran’s service. The spouse noted that the Veteran had shown signs of hearing loss throughout their entire relationship. While the spouse believed it to be “selective hearing” at first, she later realized that the Veteran simply could not hear or understand people who were not standing directly in front of him. The spouse wrote that the Veteran’s hearing had worsened over the previous 47 years, and noted that their children had also complained about the Veteran’s hearing difficulties from the time they were very young. In a December 2014 lay statement, the Veteran advanced that symptoms of hearing loss and tinnitus began during service, persisted since service separation, and have remained present to this day. Again, the Veteran conveyed having minimal to no loud post-service noise exposure. As discussed above, the Veteran testified at a virtual Board hearing in January 2021. The Veteran credibly testified to having regular acoustic trauma during service, with little to no post-service hazardous noise exposure. Further, the Veteran credibly testified that hearing loss symptoms first manifested in service and have persisted to the present day. The Veteran specifically testified to noticing gradually increasing hearing loss throughout the years, and also testified about his spouse and mother observing the hearing difficulties as far back as active service. Resolving reasonable doubt in the Veteran’s favor, the evidence of record is sufficient to show “continuous” bilateral hearing loss symptoms since service separation to meet the requirements of chronic disease presumptive service connection under 38 C.F.R. § 3.303(b). The Veteran’s various consistent lay statements and testimony of bilateral hearing loss symptoms beginning in service and continuing to the present, along with the supporting credible lay statement provided by the spouse in July 2012, are sufficient to place in equipoise the question of whether the Veteran experienced continuity of symptomatology of bilateral hearing loss since service separation that was later diagnosed as bilateral sensorineural hearing loss. The above findings are supported by the fact that the Veteran has been granted service connection for tinnitus based on similar assertions of loud noise exposure during service. See April 2020 rating decision. 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.” See Fountain v. McDonald, 27 Vet. App. 258 (2015) (recognizing sensorineural hearing loss is a permanent disability that was incapable of actual improvement of the nerve damage because chronic sensorineural hearing loss either progresses or remains the same (i.e., progression may be prevented), while restoration (i.e., improvement) of chronic sensorineural hearing loss that was caused by acoustic trauma is not medically possible). 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 bilateral sensorineural hearing loss. (Continued on the next page)   For these reasons, and resolving all reasonable doubt in the Veteran’s favor, the Board finds that the Veteran was exposed to loud noise (acoustic trauma) while in service and experienced “continuous” symptoms of bilateral hearing loss since service separation in May 1965, which meets the criteria for presumptive service connection for bilateral hearing loss under 38 C.F.R. § 3.303(b) based on “continuous” post service symptoms. As service connection is being granted on a presumptive basis, there is no need to discuss entitlement to service connection on a direct 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 E. Blowers, 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.