Citation Nr: 18150313 Decision Date: 11/15/18 Archive Date: 11/14/18 DOCKET NO. 15-21 435 DATE: November 15, 2018 ORDER Service connection for bilateral sensorineural hearing loss is granted. Service connection for tinnitus is granted. A total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The March 2013 VA and March 2014 private audiological examination reports establish that the Veteran has current left and right ear hearing loss disabilities (as defined for VA compensation purposes). During the November 2018 Board of Veterans’ Appeals (Board) hearing, the Veteran testified that he was exposed to significant acoustic trauma throughout his military career while working on loud generators without hearing protection. He also testified that he first noticed hearing loss during service; he reported it to his platoon sergeant and went to sick call. The evidence does not show any significant post-service recreational or occupational noise exposure. Overall, the Board finds that the evidence is at least equipoise that the Veteran’s current bilateral ear hearing loss disability began during service. [The March 2013 negative VA opinion cannot be assigned significant probative weight because the examiner did not address the Veteran’s report that he first noticed hearing loss during service and did have the opportunity to review the Veteran’s March 2014 audiological testing results; therefore, the opinion is based on an inaccurate factual premise and, by law, the Board may not rely on it as evidence when deciding this claim.] 2. The Veteran has diagnosed tinnitus; in November 2018, he provided competent and credible testimony that he was exposed to significant acoustic trauma throughout his military career while working on loud generators without hearing protection. He also testified that he first noticed tinnitus during service; he reported it to his platoon sergeant and went to sick call. Overall, the Board finds that the probative evidence of record establishes that the Veteran’s current tinnitus began during service. [A March 2013 negative VA opinion cannot be assigned significant probative weight because the examiner did not address the Veteran’s report that he first noticed tinnitus during service and, therefore, the opinion is based on an inaccurate factual premise and, by law, the Board may not rely on the negative opinion in this case.] 3. The Veteran is service connected for panic disorder, rated as 70 percent disabling, and a right knee disability, rated at 30 percent disabling, for a total evaluation of 80 percent. During service, the Veteran maintained generators; after service, he worked as a letter carrier. During the November 2018 hearing, he testified that his right knee pain and swelling impaired his ability to walk the delivery route, and that his panic disorder impaired his ability to focus on, interpret, and remember necessary job information. On average, he took one week off work per month due to these disabilities. He testified that he was disciplined formally and informally because of these difficulties, that he retired in January 2018 because he could no longer satisfactorily perform his duties, and that he has not worked since then. He tried to complete a VA vocational rehabilitation program, but his right knee disability prevented him from attending classes and his panic disorder made it difficult to focus on, interpret, and remember the course material; he was only able to finish one semester of the program. Overall, the Board finds that the evidence of record and the Veteran’s competent and credible testimony establish that his service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. Service connection is warranted for bilateral sensorineural hearing loss. 38 U.S.C. §§ 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a). 2. Service connection is warranted for tinnitus. 38 U.S.C. §§ 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a); see Fountain v. McDonald, 27 Vet. App. 258 (2015) (finding tinnitus is an “organic disease of the nervous system” subject to presumptive service connection “at a minimum where there is evidence of acoustic trauma”). 3. A TDIU rating is warranted on a schedular basis. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1983 to February 1991. These matters are before the Board on appeal from March 2013 and October 2015 rating decisions. In November 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge of the Board. 1. Service connection for bilateral sensorineural hearing loss 2. Service connection for tinnitus For the reasons outlined above, service connection for bilateral sensorineural hearing loss and tinnitus is warranted. 3. TDIU For the reasons outlined above, a TDIU rating is warranted. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Robinson, Associate Counsel