HEARING LOSS

STEVEN D. REISS · 2025 · Case ID: 25013363

GRANTED

Summary

The veteran, who served in the United States Marine Corps from August 1979 to August 1983, appeals the denial of service connection for bilateral hearing loss. The veteran claims his hearing loss is due to acoustic trauma from loud, inescapable noise from artillery during service, without adequate hearing protection. The Board noted the veteran's MOS had a moderate probability of noise exposure and that service connection for tinnitus was already established. The veteran testified that his hearing loss has worsened and is related to his service-connected tinnitus. A VA examiner in April 2025 opined that the bilateral hearing loss was aggravated by the service-connected tinnitus. However, a subsequent VA addendum opinion questioned this, stating hearing loss can aggravate tinnitus, but not vice versa. Despite this conflicting medical opinion, the Board found the April 2025 opinion favorable, establishing a relationship between the hearing loss and tinnitus. Applying the benefit of the doubt doctrine, as the evidence was in approximate balance regarding whether tinnitus impedes hearing loss consistent with the Spicer v. McDonough ruling, the Board found service connection for bilateral hearing loss warranted, deeming it caused, at least in part, by his tinnitus. The Board's decision granted service connection for bilateral hearing loss.

Rationale

Veteran claims hearing loss due to acoustic trauma from artillery.; Service connection for tinnitus is established.; April 2025 VA opinion found hearing loss aggravated by tinnitus.; May 2025 VA opinion questioned aggravation, but Board favored April opinion.; Board applied benefit of the doubt due to approximate balance of evidence.; Spicer v. McDonough ruling applied to find hearing loss caused by tinnitus.

Service Branch

MARINE CORPS

Special Benefit

NO SPECIAL BENEFIT

Docket No.

19-36 409A

Full Decision Text

Citation Nr: 25013363
Decision Date: 10/28/25 Archive Date: 10/28/25

DOCKET NO. 19-36 409A
DATE: October 28, 2025

ORDER

Service connection for bilateral hearing loss is granted.

FINDING OF FACT

The Veteran's bilateral hearing loss was caused by and due to or the result of his service-connected tinnitus.

CONCLUSION OF LAW

The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.310, 3.385.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Marine Corps from August 1979 to August 1983.?

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2019 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).?

The Veteran testified at a hearing before the undersigned Veterans Law Judge in December 2023.?

This appeal was previously before the Board in February 2024, February 2025, and June 2025, in which this matter was remanded for additional development.

SERVICE CONNECTION???

Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.? See Shedden v. Principi,?381 F.3d 1163?(Fed. Cir. 2004).??????

Service connection may be granted for any disease initially diagnosed after service, 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 may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under?38 C.F.R. §?3.310. Allen v. Brown,?7?Vet. App.?439?(1995); Cf. Spicer?v. McDonough,?61 F.4th 1360 (Fed. Cir. 2023) (invalidating?3.310(b) for the use of the phrase "proximately due to" in the context of aggravation). Specifically, in Spicer, the Court held that?38 U.S.C. § 1110 plainly requires compensation when a service-connected disease or injury is a but-for cause of a present-day disability.

The Board notes that this broad language applies to the natural progression of a condition not caused by a service-connected injury or disease, but that nonetheless would have been less severe were it not for the service-connected disability. Stated another way, § 1110 provides for compensation for a worsening of functionality-whether through an inability to treat or a more direct, etiological cause. The Federal Circuit noted that nothing in the statute limits § 1110 to onset or etiological causes of a worsening in functionality. Thus, the Court in?Spicer?found the phrase "proximately due to" under?3.310(b) inconsistent with § 1110 and, therefore "unlawful," consequently, for "aggravation of non-service-connected disabilities" it is enough to show that "but for" the service-connected disability the incremental-increase in severity of a nonservice-connected disease or injury would not have occurred. Id.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. To deny a claim on its merits, the weight of the evidence must persuasively stand against a finding that the evidence is in "approximate balance" or "nearly equal" to the evidence that supports the claim. Lynch?v. McDonough,?21 F.4th 776 (Fed. Cir. 2021) (en banc).

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
the evidence that supports the claim. Lynch?v. McDonough,?21 F.4th 776 (Fed. Cir. 2021) (en banc).

1. Service connection for bilateral hearing loss is granted.

The Veteran asserts that his bilateral hearing loss is due to acoustic trauma he suffered during his time in service when he was on the artillery platoon and was prone to extremely loud and inescapable noise without any adequate hearing protection.? See January 2006 Statement in Support of Claim.?

Initially, the Board notes that the Veteran has a current diagnosis of bilateral hearing loss for VA disability purposes as defined by 38 C.F.R. § 3.385, and the Veteran's military occupational specialty (MOS) had a moderate probability of noise exposure. See August 2019 rating decision. Further, the Board notes that service connection is in effect for the Veteran's tinnitus. See April 2024 Board decision.

The Veteran also reports difficulty hearing due to his service-connected tinnitus and reiterated that his hearing loss has worsened over the years and the VA has issued him hearing aids.? See December 2023 hearing transcript. In the April 2025 VA medical opinion, the examiner opined that the Veteran's bilateral hearing loss was aggravated beyond its natural progression by his service-connected tinnitus. However, a May 2025 VA addendum opinion, a different examiner was asked to clarify the rationale behind the aggravation opinion. The examiner's rationale was that hearing loss (the condition) can cause and aggravate tinnitus (the symptoms), however not vice versa. The examiner further noted that the experience of tinnitus does not directly aggravate hearing loss citing medical literature.

However, the April 2025 VA medical opinion, establishing a relationship between the Veteran's bilateral hearing loss and tinnitus, is favorable medical evidence that his service-connected tinnitus aggravates his ability to hear and thus his bilateral hearing loss as contemplated in Spicer. See Spicer?v. McDonough,?61 F.4th 1360 (Fed. Cir. 2023)).

Here, the Board finds that the evidence is in approximate balance whether, consistent with Spicer, service-connected tinnitus impedes on the Veteran's bilateral hearing loss. Accordingly, in light of Spicer, the Board finds that service connection is warranted for bilateral hearing loss because it is caused, at least in part, by his tinnitus.

STEVEN D. REISS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board S. Nettles, 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.

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