Citation Nr: 21023621 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 17-67 498 DATE: April 21, 2021 ORDER Service connection for bilateral sensorineural hearing loss is granted. FINDINGS OF FACT 1. The Veteran sustained acoustic trauma during service. 2. Symptoms of hearing loss started during service and were continuous since service separation. 3. The Veteran currently has a hearing loss disability for VA compensation purposes with respect to 38 C.F.R. § 3.385. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for presumptive service connection for hearing loss are met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a), 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the appellant, had active duty service from October 1965 to September 1967. The instant case is on appeal from a Department of Veterans Affairs (VA) Regional Office (RO) rating decision that, in pertinent part, denied service connection for bilateral sensorineural hearing loss (hearing loss). The case has been before the Board of Veterans’ Appeals (Board) previously. In May 2019, the Board remanded the issue of service connection for hearing loss for a revised nexus opinion. The revised nexus opinion has been procured, so there has been substantial compliance with the terms of the remand and the case is ripe for adjudication. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 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, 3.156, 3.159, 3.326. Moreover, as this decision is a full grant of the benefits sought on appeal, no additional notice or assistance, or discussion of the duties to notify and assist, is warranted. Service Connection Legal Authority Direct Service Connection Service connection can be granted for a disability resulting from a 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. 38 C.F.R. § 3.303(d). Service connection generally requires (1) competent evidence of a current disability; 2) medical or, in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and 3) competent evidence of a nexus between the claimed in-service disease or injury and the current disability. Chronic Disease Presumptive Service Connection Hearing loss is considered by VA to be a “chronic disease” as an “organic disease of the nervous system” listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For these reasons, 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. Id. 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. With chronic disease 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. 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). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time.38 U.S.C. § §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Service Connection for Bilateral Hearing Loss is Granted The Veteran claims that his current hearing loss is related to loud noise exposure during service. He asserts that hearing loss symptoms began during service and have continued since service separation. See December 2017 VA Form 9; July 2017 Notice of Disagreement. After a review of all the evidence, the Board finds that the evidence is at least in equipoise on the question of whether the Veteran experienced continuous hearing loss symptoms since service separation to warrant presumptive service connection for hearing loss as a “chronic disease” under 38 U.S.C. § 1112 and 38 C.F.R. § 3.303(b). The evidence shows that the Veteran was exposed to loud noise (acoustic trauma) during service. As detailed in the December 2017 Statement of the Case, the Veteran was a truck driver during military service and was exposed to hazardous levels of noise from the trucks, including being on the firing line during deliveries where hearing protection was not available. The Military Occupational Specialty of heavy vehicle driver is highly probable for hazardous noise exposure. See July 2017 Notice of Disagreement. Accordingly, the evidence reflects that the Veteran sustained acoustic trauma during service. The evidence is at least in equipoise on the question of whether symptoms of hearing loss were continuous since service. The Veteran has stated that he started having hearing difficulty during service and that he has had it continuously since service. In the July 2017 Notice of Disagreement, the Veteran wrote that hearing loss began in service and still exists today. In a March 2017 Statement in Support of Claim, the Veteran stated that during service he was constantly exposed to extreme loud noises while working as a heavy vehicle driver, hearing loss symptoms began during service, and that he experienced from hearing loss ever since service. Resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran experienced symptoms of hearing loss in service and continuity of symptomatology of hearing loss since service separation. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303(b). The evidence shows a current disability of hearing loss under 38 C.F.R. § 3.385 as measured by the December 2019 VA examination. One way of meeting the hearing loss definition is to have an auditory threshold at 40 decibels lost or greater at 500 Hertz, 1000 Hertz, 2000 Hertz, 3000 Hertz, or 4000 Hertz. See 38 C.F.R. § 3.385. The December 2019 VA examination for the right ear showed at 40 decibels or greater for 2000 Hertz, 3000 Hertz, and 4000 Hertz. The December 2019 VA examination for the left ear showed at 40 decibels or greater for 1000 Hertz, 2000 Hertz, 3000 Hertz, and 4000 Hertz. For these reasons, the Board finds that symptoms of hearing loss have been continuous since service separation, which meets the criteria for presumptive service connection for the chronic disease of bilateral hearing loss under 38 U.S.C. § 1112 and 38 C.F.R. § 3.303(b). As the Board is granting presumptive service connection for hearing loss based on continuity of symptomatology since service (38 C.F.R. § 3.303(b)), the theory of direct service connection will not be discussed. The Board recognizes that a nexus opinion related to direct service connection has been procured, but it has been rendered moot by the grant of chronic disease presumptive service connection in this decision. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Smith, 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.