Citation Nr: 18156393 Decision Date: 12/11/18 Archive Date: 12/07/18 DOCKET NO. 17-29 629 DATE: December 11, 2018 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus as secondary to service-connected bilateral hearing loss is granted. FINDINGS OF FACT 1. The Veteran’s bilateral hearing loss is related to his active service. 2. The Veteran’s tinnitus is proximately due to his service-connected bilateral hearing loss. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1131, 1154; 38 C.F.R. §§ 3.303, 3.385. 2. The criteria for entitlement to secondary service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from February 1954 to October 1957. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In a November 2017 decision, the Board reopened the Veteran’s service connection claim for tinnitus and denied that claim, along with the claim of entitlement to service connection for bilateral hearing loss, on the merits. The Veteran timely appealed the November 2017 Board decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the Board decision as to the denial of service connection for bilateral hearing loss and tinnitus. The Court did not disturb the Board’s favorable finding to reopen the tinnitus claim. Service Connection Service connection may be established for a disability resulting from injury or disease incurred during or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, to establish service connection the evidence must show: (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 during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in-service, post-service audiometric findings meet the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in-service (as opposed to intercurrent causes). Hensley v. Brown, 5 Vet. App. 155, 159 (1993). For 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 (Hz) is 40 decibels (dBs) or greater; or when the auditory thresholds for at least three of the above frequencies are 26 dBs or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007) (upholding the validity of 38 C.F.R. § 3.385 to define hearing loss for VA purposes). The threshold for normal hearing is from 0 to 20 dBs; higher threshold levels indicate some degree of hearing loss. Hensley, 5 Vet. App. at 157. Service connection may be established on a secondary basis for a disability that is proximately due to or aggravated by a service-connected disability. 38 C.F.R. § 3.310. Secondary service connection generally requires (1) a current disability; (2) a service-connected disability; and (3) a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrent symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1377 (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). 1. Entitlement to service connection for bilateral hearing loss is granted. The Veteran asserts that his bilateral hearing loss is a result of his military occupational specialty (MOS) as a boiler operator during his military service. Specifically, he maintains that he worked in small enclosed areas with huge force air blowers running at high RMPs, and that these blowers were forcing air into the boilers in the boiler room next to the engine room and the sound was extreme. He also recalls a specific incident when he was on the dock of the ship and a five-inch gun fired, causing a concussive blast to push him back, and that since then he has had hissing or humming and a gradual loss of hearing in his ears. See December 2015 Veteran Statement. Here, a March 2016 VA examination report demonstrates bilateral hearing loss for VA purposes. 38 C.F.R. § 3.385; March 2016 VA examination report. Thus, element one is established. Regarding element two, in-service incurrence of a disease or injury, the Veteran’s service treatment records (STRs) are silent for hearing complaints and the Veteran’s hearing was normal at separation. However, the Board finds that the Veteran sustained an injury in the form of acoustic trauma in service, as he competently and credibly reported he experienced hearing loss during and since service due to duties as a boiler operator. Additionally, he specifically describes in detail one incident during service that resulted in hissing or humming and a gradual loss of hearing in his ears immediately following gun fire. The Board finds his recollection of his in-service acoustic trauma competent and credible and consistent with the circumstances of his service and MOS. 38 U.S.C. § 1154(a). Therefore, element two is also established. As to element three, nexus, a private April 2016 doctor’s opinion states that it is more likely than not that the Veteran’s current bilateral hearing loss began due to acoustic trauma while on active duty. In support of his opinion, Dr. G.A.P. noted the Veteran’s MOS as a boilerman in the Navy for several years and that he had developed ringing in his ears which he was told was normal for boilermen and as a result did not seek further medical attention. To this end, Dr. G.A.P. indicated that persistent ringing of the ears is de facto evidence of damage to the cochlear system and that his progressive ringing and bilateral sensorineural hearing loss most likely began to develop during the time that the Veteran was exposed to acoustic trauma in the military. The Board finds that this opinion tends to demonstrate that there is a relationship between the noise exposure during service and the Veteran’s current bilateral hearing loss. Albeit quite brief, the physician provided an understandable and rational basis for the opinion, which relied on an accurate history. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). Further, the Board finds nothing in the record to doubt the qualifications of Dr. G.A.P. and thus finds this medical opinion to be competent. For these reasons, the Board affords this opinion high probative value. The Board recognizes that a VA audiologist, who examined the Veteran in March 2016, ultimately reached a conclusion unfavorable to the Veteran’s bilateral hearing loss claim. However, the VA examiner relied on the absence of documented hearing loss in service and an unexplained 39- year history of post-service occupational noise exposure (not found anywhere else in the record) as the rationale for his opinion and failed to address whether the Veteran’s exposure to acoustic trauma in service caused his current hearing loss. Accordingly, the Board assigns this negative opinion no probative value. See Nieves, 22 Vet. App. 295. In sum, the most probative evidence of record reflects that the Veteran has bilateral hearing loss, that he was exposed to acoustic trauma in-service, and that his current bilateral hearing loss is related to that acoustic trauma. Thus, service connection is warranted. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.385. 2. Entitlement to secondary service connection for tinnitus is granted. The Veteran seeks service connection for tinnitus. As the below discussion is favorable in regard to secondary service connection, no other theory of entitlement will be addressed. The Veteran has a current diagnosis of tinnitus. He reports tinnitus in his lay statements and to the March 2016 VA examiner and the Dr. G.A.P. Most importantly, tinnitus is a disorder that is readily observable by laypersons and does not require medical expertise to establish its existence. See Charles v. Principi, 16 Vet. App. 370 (2002). The above decision awarded service connection for bilateral hearing loss. Accordingly, the first two elements of secondary service connection are established. Regarding the final element, nexus, the only competent opinion of record addressing secondary service connection is in favor of the claim. Specifically, the March 2016 VA examiner opined that it was at least as likely as not that the Veteran’s tinnitus was associated with his bilateral hearing loss. Thus, secondary service connection for tinnitus is warranted. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310. S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Asante, Associate Counsel