Citation Nr: 21027592 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 20-02 535 DATE: May 6, 2021 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran currently has bilateral sensorineural hearing loss (SNHL) and tinnitus. 2. The Veteran had exposure to loud noise (acoustic trauma) during service. 3. Symptoms of bilateral hearing loss and tinnitus began during service and have been continuous since service separation. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1112, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the Appellant, served on active duty from October 1964 to September 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2016 rating decision from the Regional Office (RO), which denied service connection for bilateral hearing loss and tinnitus. In April 2021, the Veteran and his spouse testified at a Board virtual hearing through the RO in Saint Petersburg, FL, before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires evidence of: (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. The Veteran is currently diagnosed with tinnitus and sensorineural hearing loss, which are considered "organic diseases of the nervous system," recognized 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 to the claim for service connection for tinnitus and bilateral hearing loss. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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 U.S. Court of Appeals for Veterans' Claims (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). 1. Service Connection for Hearing Loss 2. Service Connection for Tinnitus The Veteran testified that he was exposed to acoustic trauma during service when exposed to loud noise without hearing protection during rifle marksman qualifications and from being around other artillery fire without hearing protection when he went to the armor to do monthly inventory. The Veteran testified that he would notice ringing in the ears and what he thought to be temporary hearing loss when he was exposed to the loud noise during service, and that the mild ringing and hearing loss during service continued after service and progressively worsened over the years. He acknowledged that he worked at the Chrysler factory after service but asserts that he was required to wear hearing protection at all times, whereas no hearing protection was provided during service. See April 2021 Board Hearing Transcript. After a review of all the evidence, the Board finds that the Veteran has current disabilities of tinnitus and bilateral hearing loss to VA disability standards at 38 C.F.R. § 3.385, as reflected in lay statements and the October 2016 VA examination report and November 2017 private treatment record. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"). The evidence is at least in equipoise on the question of whether there was loud noise exposure (acoustic trauma) during service. The DD Form 214 shows that the Veteran is the recipient of the marksman (rifle) badge. In addition to loud noise from weapons qualifications, the Veteran testified to exposure to loud due to due to being around weapons firing while conducting monthly inventory at the armor during service. See DD Form 214. The Board finds the Veteran's account of in-service noise exposure to be credible and consistent with the places, types, and circumstances of his service, so will resolve doubt to find in-service acoustic trauma. 38 U.S.C. § 1154(a). The evidence is at least in equipoise on the question of whether symptoms of tinnitus and bilateral hearing loss began during service and have been continuous since service separation. The Veteran and his spouse have provided credible lay statements of and onset of hearing loss and tinnitus symptoms during service and since service separation. The Veteran indicates that symptoms of hearing loss and mild ringing in the ears was noticeable after exposure to gun and artillery fire during service, when no hearing protection was used. Although the symptoms seemed to improve initially, the Veteran testified that he continued to notice a mild ringing in the ears that continued during service and progressively worsened over the years after service separations. Additionally, the Veteran testified that he does not recall his hearing being tested at service separation. The Veteran testified that, although he worked in the Chrysler factory for years after service, he was required to wear hearing protection at all times, and the noise that he was exposed to in service without hearing protection was much worse than the noise he was exposed to in his post-service civilian job. See April 2021 Board Hearing Transcript. The Veteran's spouse testified that she has been in a relationship with the Veteran for 51 years and they met shortly after he separated from service, and that the Veteran he has always had problems hearing a person if he is not looking at the individual. See April 2021 Board Hearing Transcript. While VA examiner in October 2016 rendered a negative nexus opinion on the direct service connection question, such an opinion is rendered moot by the grant of presumptive service connection based on continuous post-service symptoms of "chronic" diseases of tinnitus and hearing loss. Because the Board has found continuous post-service symptoms of tinnitus and bilateral hearing loss and is granting presumptive service connection for "chronic" diseases under 38 C.F.R. § 3.303(b), all other theories of service connection are rendered moot, including direct service connection. This obviates the need for direct nexus opinions (October 2016) to relate the tinnitus and bilateral hearing loss to service. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for presumptive service connection for tinnitus and bilateral hearing loss have been met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Shanna 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.