Citation Nr: 18142537 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 16-34 291 DATE: October 17, 2018 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran’s bilateral hearing loss is etiologically related to his active service. 2. The Veteran’s tinnitus is etiologically related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107(b) (West 2012); 38 C.F.R. §§ 3.303, 3.385 (2017). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107(b) (West 2012); 38 C.F.R. § 3.303(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from August 1980 to August 1983. Service Connection 1. Entitlement to service connection for bilateral hearing loss The Veteran asserts that his bilateral hearing loss is related to his active service. As to a current diagnosis, the February 2015 hearing loss Disability Benefits Questionnaire (DBQ) indicates a diagnosis for bilateral hearing loss, and the audiometric findings from this examination are sufficient to establish bilateral hearing loss for VA purposes. 38 C.F.R. § 3.385. As such, a current diagnosis is established. As to an in-service incurrence, the Veteran asserts that his hearing loss is due to the noise he was exposed to during service from helicopters, planes, and shootings from tanks. See April 2015 Notice of Disagreement. He further stated that the loud noises from the guns that were shooting at him have contributed to his hearing issues as well. The Veteran’s DD 214 lists his military occupational specialty (MOS) as equipment records and parts specialist. The February 2015 hearing loss DBQ also reflects his reports of shooting guns in service. Given the nature of the Veteran’s MOS, the Board finds his reports credible and therefore concedes in-service noise exposure. As such, the remaining issue is a nexus. The February 2015 VA examiner provided a negative nexus opinion. The examiner indicated that his rationale was based on records received and reviewed, which suggest hearing within normal limits during military service, there being no enlistment or separation hearing thresholds, and no concession of military noise exposure. The examiner further stated that the Veteran’s hearing loss is inconsistent in degree and configuration of a noise-induced hearing loss that started 30 plus years ago and that the veteran was not reportedly exposed to significant noise exposure during his military service. However, the Board notes that the Veteran’s available service treatment records (STRs) in the claims file do not include an entrance or separation hearing examination. When there is evidence that a veteran’s service records have been lost or destroyed, VA has a heightened duty to consider the applicability of the benefit of the doubt rule, to assist a claimant in developing a claim, and to explain its findings and conclusions. Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); Russo v. Brown, 9 Vet. App. 46, 51 (1996); O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Here, there is no evidence of record to suggest that the unavailability of the Veteran’s STRs are attributable to him. As such, the Board will not rely on the VA examiner’s conclusion citing lack of this evidence as a rationale for the negative nexus opinion provided. Additionally, the examiner’s rationale is based on lack of conceded in-service noise exposure. However, as discussed in this opinion, the Board finds the Veteran’s reports of in-service noise exposure credible and probative. As such, as discussed, in-service noise exposure has been conceded. While the VA examiner also indicated that the Veteran used hearing protection and his hearing loss is not consistent with noise exposure, as the examiner did not consider the Veteran’s lay statements of noise exposure in service, the Board does not find the conclusion adequate. Accordingly, for the reasons discussed, the Board does not find the February 2015 VA opinion adequate. While there is also no positive opinion of record linking the Veteran’s hearing loss to his active service, the Veteran has indicated, in sum, that he has been suffering from symptoms of hearing loss starting in service and continuing to the present day. In weighing the Veteran’s statements, the Board notes that the Veteran is competent to assert the presence of symptoms subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board also has no reason to doubt the credibility of the Veteran’s statements and as such finds them probative. Given the Veteran’s credible statements of continuing symptoms and the lack of an adequate negative nexus opinion, the Board finds that service connection for bilateral hearing loss is warranted. See 38 C.F.R. § 3.303(a) (service connection must be considered on the basis of the places, types, and circumstances of his service as shown by his service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence). Accordingly, the appeal for service connection for bilateral hearing loss is granted. 2. Entitlement to service connection for tinnitus The Veteran also contends that he has tinnitus as a result of his in-service noise exposure. The February 2015 VA examiner also provided a diagnosis for recurrent tinnitus. As such, a current diagnosis is established. As discussed, noise exposure has been conceded. Therefore, the remaining issue is a nexus. As to a nexus, the February 2015 VA examiner provided a negative opinion. The examiner reasoned that based on the opinion that the Veteran’s hearing loss is less likely than not related to service and his reports that his tinnitus began 15 or more years after service, it follows that his tinnitus is not related to his service. The examiner further stated that this opinion is based on the length of time between military service and the onset of the Veteran’s tinnitus. However, as the Board does not find the opinion regarding the Veteran’s hearing loss adequate, the Board also does not find the opinion as to tinnitus, which relies on the opinion concerning hearing loss, to be adequate. Additionally, while the examiner noted that the Veteran reported tinnitus with onset 15 years after service, the Veteran’s notice of disagreement reflects his statements that his tinnitus is due to the helicopter, guns, and tanks he was exposed to in service. While the statements contradict, given that the Board has no reason to doubt the credibility of the Veteran’s statements, the Board finds that the evidence is evenly balanced as to the onset of the Veteran’s tinnitus. Resolving any reasonable doubt in the Veteran’s favor, the Board finds his reports of tinnitus onset in service credible. Additionally, the VA examiner relied on the diagnosis for tinnitus occurring 15 years after service without considering the Veteran’s lay statements as to his in-service duties. Moreover, while there is no positive medical opinion of record linking the Veteran’s tinnitus to his service, the Board finds the Veteran’s lay statements that he experienced ringing in his ears during and since service sufficient to indicate a nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (holding that whether a layperson is competent to provide a nexus opinion depends on the facts of the particular case). Having experienced ringing in the ears following noise exposure and thereby linking the ringing in the ears to noise exposure does not require medical knowledge or training. Accordingly, a nexus is established, and the appeal for service connection for tinnitus is granted. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Smith, Associate Counsel