Citation Nr: 21021580 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 16-23 060 DATE: April 13, 2021 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran had active duty from May 1966 to February 1968. 2. Bilateral hearing loss has been continuous since service 3. Tinnitus is proximately due to service-connected bilateral hearing loss. CONCLUSIONS OF LAW 1. Bilateral hearing loss is presumed to have incurred in service. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2020). 2. Tinnitus is proximately due to a service-connected disability. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Hearing loss and tinnitus are recognized by VA as a “chronic disease” under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). Bilateral Hearing Loss Turning to the evidence, hearing loss was noted in a May 2015 VA examination. In this respect, hearing loss is considered a disability for VA purposes when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz (Hz) is 40 decibels or greater; 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. Testing results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 40 40 60 65 LEFT 40 35 40 55 65 While the Veteran’s speech recognition was 96 percent bilaterally, the audiogram recorded sufficient hearing loss at various decibels to constitute hearing loss for VA purpose bilaterally. Reports of his symptoms are also well-documented throughout VA treatment records. Thus, the first element of service connection – a current diagnosis – has been met. Next, the evidence supports a finding of in-service acoustic trauma. Although the Veteran’s DD-214 listed his military occupational specialty (MOS) as cargo specialist, which the May 2015 VA examiner described as having a moderate probability of hazardous noise exposure, the Veteran has described in October 2004 private medical records, his May 2016 Form 9, and March 2009 VA medical records that he also worked as a security guard when serving overseas, and had noise exposures from bombings, shootings, and explosions while at the main guard post, and had to test fire weapons without hearing protection. Thus, the Veteran has consistently and credibly recounted these experiences in service. A veteran is competent to report that which he perceives through the use of his senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Further, there is no evidence of record which tends to contradict the Veteran’s testimony. As such, the second element of service connection has been met. As to continuity, the May 2015 VA examiner stated that the Veteran said he noted hearing loss in his left ear in 1969, the year following separation from service. February 2009 VA medical records note he complained of hearing loss since the 1970s. Additionally, and of most probative value, on the Veteran’s February 1966 preinduction examination he noted that he had trouble hearing out of his left ear, but the objective audiological testing showed no hearing impairment. In the February 1968 separation Report of Medical History, he indicated that he had difficulty hearing; however, the separation examination does not show any audiological testing was performed. As such, the evidence indicates the Veteran noticed problems hearing upon separation, and there is no compelling evidence that his hearing did not worsen during service. His separation examination did not specify if he noted hearing loss in a specific ear or if it was bilateral. While there is an absence of complaints or treatment for hearing loss for many years after service separation, the Board has resolved reasonable doubt in his favor and finds that he had continuous symptoms of hearing loss for both ears since service separation and meets the requirements of presumptive service connection under 38 C.F.R. § 3.303(b). The Board notes that a May 2015 VA examination determined that the Veteran’s hearing loss was not caused by service; however, the Board does not need to reach the weight assignable to the VA opinion because service connection is granted on a presumptive basis under 38 C.F.R. § 3.303(b) for the “chronic” disease of hearing loss (38 C.F.R. § 3.309(a)) based on a finding of “continuous” symptoms of hearing loss since service rather than on direct service connection. In sum, there is evidence of acoustic trauma in-service and continuous symptoms of hearing loss since service; therefore, hearing loss is presumed to have been incurred in service and the appeal is granted. Because the Board is granting service connection on a presumptive basis based on continuous symptoms of hearing loss since service separation, all other service connection theories are rendered moot. Tinnitus The Veteran claims tinnitus was caused by service. As the evidence supports service connection on a secondary basis, it will be evaluated on that basis. Turning to the evidence, the first element of service connection – a current disability – is met as the May 2015 VA examiner confirmed a diagnosis of tinnitus, which was consistently documented in private and VA medical records prior to that date. As such, the first element is met. The second element – a service-connected disability – is also met, as the Veteran is now service connected for bilateral hearing loss. As to a medical nexus, the May 2015 VA examiner stated that the Veteran had bilateral recurrent tinnitus that was first noted approximately 10 years prior, and that it was less likely than not caused by service. Rather, the examiner found, that tinnitus was a symptom of hearing loss. As he was not previously service connected for bilateral hearing loss, the claim was denied. As service connection for hearing loss is now granted, service connection for tinnitus is warranted on a secondary basis. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brendan A. Evans, 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.