Citation Nr: AXXXXXXXX Decision Date: 03/31/20 Archive Date: 03/31/20
DOCKET NO. 190425-10938 DATE: March 31, 2020
ORDER
Service connection for bilateral hearing loss is granted.
FINDINGS OF FACT
1. The Veteran has a current disability of bilateral sensorineural hearing loss (SNHL).
2. The Veteran had exposure to loud noise (acoustic trauma) during service.
3. Symptoms of bilateral hearing loss were chronic in service and have been continuous since service separation.
CONCLUSION OF LAW
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, 3.385.
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veteran, who is the Appellant, served on active duty from July 1968 to May 1970.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2018 rating decision from the Regional Office (RO), which, in pertinent part, denied service connection for bilateral hearing loss. In April 2019, the Veteran elected the modernized review system (AMA). 38 C.F.R. § 19.2(d).
Service connection for bilateral hearing loss
The Veteran contends that he was continually exposed to bombs and gunfire during service in Vietnam, which caused symptoms of hearing loss. The Veteran reports continued symptoms of hearing loss since service separation. See April 2019 Statement in Support of the Claim (SSC), March 2020 representative brief.
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 bilateral SNHL, which is considered by VA to be an “organic disease 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 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).
Initially, the Board finds that the Veteran has a current bilateral hearing loss disability for VA purposes that meets the criteria at 38 C.F.R. § 3.385, as reflected in the October 2018 VA examination report.
The evidence shows that the Veteran experienced in-service acoustic trauma. The Veteran reported that he was exposed to loud noise from gunfire and bombs during service. The DD Form 214 reflects that the military occupational specialty was Infantry Indirect Fire Crewman, and the Veteran is a recipient of the Vietnam Campaign Medal and the Combat Infantryman’s Badge. The Veteran’s account of in-service loud noise exposure to be credible and consistent with the places, types, and circumstances of service. 38 U.S.C. § 1154(a),(b).
The Board further finds that the evidence is at least in equipoise on the question of whether symptoms of bilateral hearing loss have been continuous since service to warrant presumptive service connection for bilateral hearing loss as a chronic disease. 38 C.F.R. § 3.303(b). The Veteran provided credible lay statements of exposure to loud noise from gunfire and bombs during service in Vietnam, as well as difficulties with hearing loss and prolonged ringing in the ears that began during service. The Veteran reports that symptoms of bilateral hearing loss remained persistent after service separation and continued, progressing into the current hearing loss that includes difficulties with hearing people. See April 2019 SSC, March 2020 representative brief.
Service connection for tinnitus was granted based on the same in-service acoustic trauma. See December 2018 rating decision. Similar to tinnitus, SNHL is linked with nerve damage that most often occurs “when the tiny hair cells in the cochlea are injured.” See Fountain v. McDonald, 27 Vet. App. 258 (2015) (holding SNHL is a permanent disability that was incapable of actual improvement of the nerve damage because chronic SNHL either progresses or remains the same (i.e., progression may be prevented), while restoration (i.e., improvement) of chronic SNHL that was caused by acoustic trauma is not medically possible). Because the Veteran sustained nerve damage from the acoustic trauma during service that caused the service-connected tinnitus, by necessary logical inference and applying the principles identified in medical authority cited Fountain, the Veteran sustained the same nerve damage to the inner ear that caused the current SNHL. The Board finds that, based upon both medical and legal authority, the in-service acoustic trauma caused permanent nerve damage to the auditory nerve or inner ear, which denotes the onset of the current SNHL in service. Such SNHL is a permanent disability that was incapable of actual improvement of the nerve damage because chronic SNHL either progresses or remains the same (i.e., progression may be prevented), while restoration (i.e., improvement) of chronic SNHL that was caused by acoustic trauma is not medically possible. See Fountain, 27 Vet. App. 258.
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The Veteran has made credible statements that bilateral hearing loss symptoms began in active service and have been continuous since service separation.
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Citation Nr: AXXXXXXXX Decision Date: 03/31/20 Archive Date: 03/31/20
DOCKET NO. 190425-10938 DATE: March 31, 2020
ORDER
Service connection for bilateral hearing loss is granted.
FINDINGS OF FACT
1. The Veteran has a current disability of bilateral sensorineural hearing loss (SNHL).
2. The Veteran had exposure to loud noise (acoustic trauma) during service.
3. Symptoms of bilateral hearing loss were chronic in service and have been continuous since service separation.
CONCLUSION OF LAW
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, 3.385.
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veteran, who is the Appellant, served on active duty from July 1968 to May 1970.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2018 rating decision from the Regional Office (RO), which, in pertinent part, denied service connection for bilateral hearing loss. In April 2019, the Veteran elected the modernized review system (AMA). 38 C.F.R. § 19.2(d).
Service connection for bilateral hearing loss
The Veteran contends that he was continually exposed to bombs and gunfire during service in Vietnam, which caused symptoms of hearing loss. The Veteran reports continued symptoms of hearing loss since service separation. See April 2019 Statement in Support of the Claim (SSC), March 2020 representative brief.
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 bilateral SNHL, which is considered by VA to be an “organic disease 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 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).
Initially, the Board finds that the Veteran has a current bilateral hearing loss disability for VA purposes that meets the criteria at 38 C.F.R. § 3.385, as reflected in the October 2018 VA examination report.
The evidence shows that the Veteran experienced in-service acoustic trauma. The Veteran reported that he was exposed to loud noise from gunfire and bombs during service. The DD Form 214 reflects that the military occupational specialty was Infantry Indirect Fire Crewman, and the Veteran is a recipient of the Vietnam Campaign Medal and the Combat Infantryman’s Badge. The Veteran’s account of in-service loud noise exposure to be credible and consistent with the places, types, and circumstances of service. 38 U.S.C. § 1154(a),(b).
The Board further finds that the evidence is at least in equipoise on the question of whether symptoms of bilateral hearing loss have been continuous since service to warrant presumptive service connection for bilateral hearing loss as a chronic disease. 38 C.F.R. § 3.303(b). The Veteran provided credible lay statements of exposure to loud noise from gunfire and bombs during service in Vietnam, as well as difficulties with hearing loss and prolonged ringing in the ears that began during service. The Veteran reports that symptoms of bilateral hearing loss remained persistent after service separation and continued, progressing into the current hearing loss that includes difficulties with hearing people. See April 2019 SSC, March 2020 representative brief.
Service connection for tinnitus was granted based on the same in-service acoustic trauma. See December 2018 rating decision. Similar to tinnitus, SNHL is linked with nerve damage that most often occurs “when the tiny hair cells in the cochlea are injured.” See Fountain v. McDonald, 27 Vet. App. 258 (2015) (holding SNHL is a permanent disability that was incapable of actual improvement of the nerve damage because chronic SNHL either progresses or remains the same (i.e., progression may be prevented), while restoration (i.e., improvement) of chronic SNHL that was caused by acoustic trauma is not medically possible). Because the Veteran sustained nerve damage from the acoustic trauma during service that caused the service-connected tinnitus, by necessary logical inference and applying the principles identified in medical authority cited Fountain, the Veteran sustained the same nerve damage to the inner ear that caused the current SNHL. The Board finds that, based upon both medical and legal authority, the in-service acoustic trauma caused permanent nerve damage to the auditory nerve or inner ear, which denotes the onset of the current SNHL in service. Such SNHL is a permanent disability that was incapable of actual improvement of the nerve damage because chronic SNHL either progresses or remains the same (i.e., progression may be prevented), while restoration (i.e., improvement) of chronic SNHL that was caused by acoustic trauma is not medically possible. See Fountain, 27 Vet. App. 258.
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The Veteran has made credible statements that bilateral hearing loss symptoms began in active service and have been continuous since service separation. The Veteran’s assertions of the onset of hearing loss during service and reports that he has had hearing loss symptomatology since service, in the context of the demonstrated in-service acoustic trauma and current bilateral hearing loss disability, are sufficient to place in equipoise the question of whether the current bilateral hearing loss was incurred in service and is etiologically related to the noise exposure in service. For these reasons, and resolving reasonable doubt in the Veteran’s favor, the Board finds that the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309.
The grant of presumptive service connection for hearing loss renders moot other theories of service connection. In October 2018, a VA examiner opined – on the question of direct service connection – that the current bilateral hearing loss is less than likely related to service; however, the rationale provided was that there was no significant permanent shift in hearing thresholds beyond test variability from service entrance to separation, which is objective evidence of no permanent auditory damage on active duty from the in-service noise exposure. See October 2018 VA examination report. As the Board is granting service connection for bilateral hearing loss under the presumptive provisions of 3.303(b) based on continuity of symptomatology since service, an opinion based on direct service connection is no longer relevant or required, as the nexus to service is presumed.
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.