Citation Nr: 21032529 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 18-21 446 DATE: May 27, 2021 ORDER Service connection for bilateral sensorineural hearing loss is denied. Service connection for bilateral tinnitus is granted. FINDINGS OF FACT 1. The Veteran was exposed to loud noise in service. 2. The Veteran does not have a current disability of bilateral sensorineural hearing loss for VA disability compensation purposes. 3. The Veteran has a current disability of bilateral tinnitus. 4. Symptoms of the bilateral tinnitus were continuous after service separation. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral sensorineural hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326, 3.385. 2. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1976 to September 1976 in the U.S. Army, and from December 1975 to February 1999 in the Army National Guard. This matter is on appeal from an April 2016 rating decision issued by the Regional Office (RO). The Veteran testified in Indianapolis, Indiana, at a Board hearing in April 2021 before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. Duties to Notify and Assist The Board finds that the duties to notify and assist the Veteran in this case have been fulfilled. Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Legal Authority for Service Connection 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. 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. 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). The Veteran currently has bilateral tinnitus (as an organic disease of the nervous system) which is considered by VA to be a "chronic" disease under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for "chronic" in-service symptoms and "continuous" post-service symptoms apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see also Fountain v. McDonald, 27 Vet. App. 258, 271 (2015) (holding that where there is evidence of acoustic trauma, the presumptive provisions of 38 C.F.R. § 3.309(a) include tinnitus as an organic disease of the nervous system). Where a veteran served 90 days or more of active service and the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 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, such as organic diseases of the nervous system, 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 C.F.R. §§ 3.307, 3.309(a). 1. Service Connection for Bilateral Sensorineural Hearing Loss is Denied. The Veteran contends that while he was serving in the Army National Guard he was exposed to loud noise as part of the military occupational specialty (MOS) of indirect fire infantrymen. The Veteran contends that the in-service noise exposure caused the reported hearing loss. See April 2021 Transcript. According to 38 C.F.R. § 3.385, for the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. The Board finds that the Veteran was exposed to loud noise in service. According to the DD Form 214, the Veteran had a military occupational specialty (MOS) of indirect fire infantrymen while in active service in late 1976 and in the Army National Guard from December 1975 to February 1999. The Board finds that this MOS has a high probability of hazardous noise exposure. The April 2016 VA audiological examination measured puretone thresholds as follows: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 15 dB 10 dB 5 dB 15 dB 20 dB Left Ear 5 dB 5 dB 10 dB 15 dB 25 dB The VA examiner measured the Veteran's speech discrimination at 96 percent in the right ear and 98 percent in the left ear. The July 2020 private audiological examination measured puretone thresholds as follows: 500 Hz 1000 Hz 2000 Hz 4000 Hz Right Ear 25 dB 10 dB 10 dB 30 dB Left Ear 20 dB 10 dB 15 dB 20 dB The private examiner did not measure the Veteran's speech discrimination in either ear. As the Veteran does not have a current disability of bilateral sensorineural hearing loss that meets the criteria at 38 C.F.R. § 3.385, the preponderance of the evidence is against service connection for bilateral sensorineural hearing loss, other elements of service connection are not reached, including application of chronic disease presumptions, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Service Connection for Bilateral Tinnitus The Veteran contends that while he was serving in the Army National Guard he was exposed to loud noise as part of the military occupational specialty (MOS) of indirect fire infantrymen. The Veteran contends that the in-service noise exposure caused the bilateral tinnitus. See April 2021 Transcript. As explained above, the Board finds that the Veteran was exposed to loud noise in service as part of the MOS of indirect fire infantrymen. After a review of the evidence, both lay and medical, the Board finds that the Veteran has a current disability of bilateral tinnitus. See April 2016 VA Examination; July 2020 Private Examination; Charles v. Principi, 16 Vet. App. 370, 374-75 (2002) (recognizing that a veteran is competent to testify to in-service acoustic trauma, in-service symptoms of tinnitus, and post-service continuous symptoms of tinnitus "because ringing in the ears is capable of lay observation"). In this case, the lay and medical evidence of record is at least in equipoise on the question of whether the symptoms of bilateral tinnitus were continuous after service separation. The Veteran has reported that he experienced symptoms of tinnitus since service separation. See August 2015 Fully Developed Claim; April 2016 VA Examination; February 2017 Notice of Disagreement; July 2020 Private Examination; April 2021 Transcript. During the April 2021 virtual Board hearing, the Veteran credibly testified that he heard buzzing in his ears during service and ringing in his ears after service. Resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for presumptive service connection for bilateral tinnitus, namely, continuous symptoms since service separation, under 38 C.F.R. § 3.303(b), have been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As presumptive service connection is being granted based continuous symptoms since service separation under 38 C.F.R. § 3.303(b), 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. While an April 2016 VA examiner opined against there being a direct connection between the current tinnitus and in-service noise exposure, this opinion pertains only the theory of direct service connection (38 C.F.R. § 3.303(d)), so is not probative in determining presumptive service connection based on the continuity of symptomatology (38 C.F.R. § 3.303(b)) of a chronic organic disease of the nervous system since service. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Costantino, 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.