Citation Nr: 21029585 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 17-24 560 DATE: May 14, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. FINDINGS OF FACT Resolving reasonable doubt in favor of the Veteran, his bilateral hearing loss is etiologically related to his military service. CONCLUSIONS OF LAW The criteria for entitlement to service connection for hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.104, 3.303, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1965 to November 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented sworn testimony before the undersigned in a February 2021 virtual Board hearing. A transcript of that hearing is of record. The Board notes that the Veteran was granted service connection for tinnitus on an April 2017 rating decision. The Veteran was awarded the highest schedular evaluation allowed under the law for tinnitus, and the earliest possible effective date. As this constitutes a full grant of the benefit sought on appeal, that issue is not before the Board. Service Connection Entitlement to service connection requires evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and the disease or injury incurred or aggravated during active service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In addition to direct service connection, service connection may also be established under 38 C.F.R. § 3.303(b) if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. Hearing loss, and organic disease of the nervous system, is a chronic condition listed under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may also be established for hearing loss based upon a legal presumption by showing that a disorder manifested itself to a compensable degree within one year from the date of separation from service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.307, 3.309(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Entitlement to service connection for bilateral hearing loss The Veteran asserts that he currently suffers from bilateral hearing loss that is a result of loud noises and acoustic trauma that he experienced during his active duty service. The Veteran was afforded a VA examination in November 2016 to assess the nature and etiology of his reported hearing loss. According to this audiological examination, the Veteran was diagnosed with sensorineural hearing loss in the left and right ears. Therefore, the first element of entitlement ot service connection, a current disability, has been established. The Veteran has reported in-service noise exposure, and his descriptions of in-service noise exposure are consistent with the circumstances of his service as documented by his service records. 38 U.S.C. § 1154(a). The Veteran's DD-214 documents that his military occupational specialty (MOS) was Field Artillery Basic. The Veteran testified that he fired Howitzers and other weapons in service without the issuance of ear protection. The Board finds it is highly probable that the Veteran was exposed to noise exposure in service. Thus, in-service noise exposure is conceded. Having established the presence of a current disability and in-service acoustic trauma, the Board turns to the dispositive issue of nexus. The November 2016 VA examiner opined that the Veteran's hearing loss is less likely than not incurred in or caused by the claimed in-service injury, event or illness because the Veteran's entrance and exit exams did not show hearing loss, and it is more likely due to working in a factory and due to aging. Sensorineural 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) (quoting VA Training Letter 10-02). More specifically, in Fountain, the United States Court of Appeals for Veterans Claims referenced VA Training Letter 10-02, in addition to other medical and legal authority, and 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. The Veteran sustained nerve damage to the inner ear that could have caused the current bilateral sensorineural hearing loss. This nerve damage was permanent and incapable of actual improvement 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. See Fountain, 27 Vet. App. at 258; VA Training Letter 10-02. Based on this reasoning, the Veteran's current bilateral hearing loss disability can be medically attributed to his military service. (Continued on the next page) Although the November 2016 VA examiner opined that the Veteran's current hearing loss is more likely due to post service factors such as noise exposure from working in a factory and from aging, it is at least equally possible that the Veteran's current hearing loss is due to the loud noises experienced during service. The examiner noted, "Exposure to continuous and/or impulse noise can damage the structure of the hair cells in the cochlea." It is also important to note that the Veteran testified to wearing two layers of ear protection if he was ever exposed to acoustic trauma post service because his hearing was already diminished at the time that he began working at those types of jobs. See May 2017 VA Form 9; February 2021 Board Hearing. Resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for bilateral ear hearing loss disability is warranted. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303(a), (d). Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Nelson, 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.