Citation Nr: 1630023 Decision Date: 07/27/16 Archive Date: 08/04/16 DOCKET NO. 15-28 770 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. ATTORNEY FOR THE BOARD J. Abrams, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1956 to November 1957. These matters are before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The Veteran requested a Decision Review Officer hearing and was scheduled for a hearing in July 2015. However, the Veteran did not report for the hearing. Consequently, he is deemed to have waived his hearing request. See 38 C.F.R. §§ 20.703, 20.704 (2015). Therefore, the Board may proceed to adjudicate this appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran was exposed to acoustic trauma during active military service. 2. Affording the Veteran the benefit of the doubt, his bilateral hearing loss is related to acoustic trauma during active military service. 3. Affording the Veteran the benefit of the doubt, his tinnitus is related to acoustic trauma during active military service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. § 1101, 1110, 1112, 1113, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2015). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2015). Given the favorable disposition of the claims of entitlement to service connection, the Board finds that all notification and development action needed to fairly adjudicate these claims have been accomplished. II. Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2015). Service connection requires competent evidence showing: (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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.385 (2015), disability due to impaired hearing, for the purposes of applying the law administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 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 (Hz) are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. III. Analysis The Veteran contends that service connection is warranted for his hearing loss and tinnitus incurred due to acoustic trauma during active duty service. Affording him the benefit of the doubt, the Board agrees. As there is considerable overlap in the applicable evidence for the Veteran's claims for entitlement to service connection for tinnitus and hearing loss, the Board will discuss the two claims together. The Veteran satisfies the first threshold element of service connection, the existence of a present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In a May 2014 VA audio examination report, the Veteran was diagnosed with bilateral sensorineural hearing loss and bilateral tinnitus. The Veteran satisfies the second threshold element of service connection, an in-service incurrence or aggravation of a disease or injury. Id. According to the Veteran's DD Form 214, his military occupational specialty was as an artillery operator. Thus, the Board concedes in-service acoustic trauma. Affording the Veteran the benefit of the doubt, he meets the third threshold element of service connection, a causal relationship between the present disabilities and the disease or injury incurred or aggravated during service. Id.; 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2015). In a May 2014 VA audio examination report, the VA examiner diagnosed the Veteran with bilateral sensorineural hearing loss and tinnitus, but concluded that the Veteran's hearing loss and tinnitus were not caused by, or a result of, military noise exposure. The examiner's rationale in denying a nexus for both hearing loss and tinnitus was that based on the audiological evaluations in the claims file, there was no evidence of complaints of hearing loss or tinnitus for more than 50 years after service. The VA examiner concluded that it was highly probable that the current hearing loss and tinnitus were due to the normal aging process and less likely than not related to military service. The Board notes that an August 2014 VA Request for Information concluded that no service treatment records from the Veteran's time in active service could be found. As such, the examiner's statement that there was no evidence of complaints of hearing loss or tinnitus during service was based on the absence of evidence, not negative evidence. The Board determines that the May 2014 VA examination report was based on inaccurate facts, namely that the Veteran made no complaints of hearing loss or tinnitus during active service. This error carries significant implications. As such, the examination report is inadequate. Coburn v. Nicholson, 19 Vet. App. 427 (2006); Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Swann v. Brown, 5 Vet. App. 229 (1993); Black v. Brown, 5 Vet. App. 177 (1993); See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The VA examiner noted that the Veteran reported intermittent tinnitus for many years but could not indicate the circumstances of its onset. The examiner further opined that the Veteran's tinnitus was at least as likely as not a symptom associated with his hearing loss, as tinnitus is known to be a symptom of hearing loss. The Board notes that in a May 2016 Request for Information, the Veteran reported that the onset of his tinnitus was in December 1956. The Board notes that the Veteran is competent to diagnose and describe tinnitus, as he can experience it through his five senses. Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The lack of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (noting that the lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) (noting that the "Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). There is no other basis, other than the silence of service records, upon which to question the credibility of the Veteran's reports. Although an etiological relationship has not been demonstrated through the foregoing VA opinion, nor otherwise shown through competent medical opinion evidence, the absence of a "valid medical opinion" is not an absolute bar to service connection. Davidson v. Shinseki, 581 F.3d at 1316. The Board finds that the continuity of symptoms reported by the Veteran are credible and of greater probative weight than the May 2014 VA examination report. The Veteran's report of having tinnitus since December 1956, during active service, and intermittently since, combined with his current diagnosis of tinnitus, leads the Board to determine that it is at least as likely as not that the Veteran's current tinnitus was incurred during active service and service connection for tinnitus is warranted. Because the Board is granting service connection for the Veteran's tinnitus in this decision, and because the examiner in the May 2014 VA examination report noted that the Veteran's tinnitus was at least as likely as not due to his hearing loss, service connection for hearing loss is also warranted on the basis that for tinnitus to be due to hearing loss, the hearing loss must have existed during active service when tinnitus first manifested. ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for bilateral hearing loss is granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs