Citation Nr: 18158868 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 17-00 345 DATE: December 18, 2018 ORDER Service connection for bilateral sensorineural hearing loss is granted. Service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran’s bilateral sensorineural hearing loss is related to his excessive military noise exposure in service. 2. The Veteran’s tinnitus is related to his excessive military noise exposure in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral sensorineural hearing loss are met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a). 2. The criteria for tinnitus have been met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307. 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from October 1968 to September 1971. Service Connection Service connection will be granted if it is shown that a Veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, to prove service connection, the record must contain evidence concerning: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and a disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In certain cases, competent lay evidence may demonstrate the presence of any of these elements. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307; 3.309(a). The chronic diseases listed in 38 C.F.R. § 3.309(a) include sensorineural hearing loss and tinnitus. The presumption for chronic diseases relaxes the evidentiary requirements for establishing entitlement to service connection. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012) (holding that “[t]he clear purpose of [subsection 3.303(b)] is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases” and only applies to the chronic diseases set forth in § 3.309(a)). Specifically, § 3.303(b) provides that when a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service (“intercurrent causes”). If the evidence is not sufficient to show that the disease was chronic at the time of service, then the claim may be established with evidence of a continuity of symptoms after service, which is a distinct and lesser evidentiary burden than the nexus element of the three-part test under Shedden. Walker, 708 F.3d at 1338; C.F.R. § 3.303(b). Showing a continuity of symptoms after service itself “establishes the link, or nexus” to service and also “confirm[s] the existence of the chronic disease while in service or [during a] presumptive period.” The provisions of subsection 3.303(b) for chronic diseases apply in this case, as sensorineural hearing loss and tinnitus are chronic diseases, and therefore the claim may be established with evidence of chronicity in service or a continuity of symptomatology after service. See Walker, 708 F.3d at 1338-1339. For claims for service connection for hearing loss or impairment, VA has specifically defined what is meant by a disability for the purposes of service connection. 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 94 percent. 38 C.F.R. § 3.385. However, the absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability, i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above, and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). 1. Service connection for bilateral sensorineural hearing loss The Veteran asserts in his Substantive Appeal that his hearing loss is a result of many years in the motor pool. He wrote, “My time in service was spent in a noisy and high frequency environment…I was in constant contact with the noise in the motor pool as I was a PLL clerk [prescribed load list clerk] in an enclosed environment.” The Board notes that the Veteran’s DD-214 shows his military occupational specialty (MOS) was listed as Wheeled Vehicle Mechanic; excessive noise exposure is conceded. On the authorized audiological evaluation in June 2015, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 65 70 75 75 75 LEFT 60 65 65 75 85 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 96 percent in the left ear. The examiner diagnosed the Veteran with bilateral sensorineural hearing loss. The examiner concluded that the Veteran’s hearing loss was not caused by or a result of an event in military service. She provided a rationale that stated the Veteran’s hearing was normal at separation and that he worked for 44 years in construction. However, the Board notes that the Veteran’s service treatment records (STR) show a threshold shift in both ears from the Veteran’s entrance physical to his separation physical. Moreover, the Board observes that the Veteran’s “construction” work was as a bricklayer, an occupation not necessarily associated with excessive noise. The examiner did not address either of these facts, or the conceded noise exposure for the Veteran’s MOS. The Board observes that for an opinion to be adequate, it must include consideration of the Veteran’s statements, be based on accurate factual premises, and contain a rationale sufficient to support its conclusions. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). Here, the examiner’s opinion is inadequate as her rationale did not address the critical facts of his conceded noise exposure due to his MOS as a wheeled vehicle mechanic, did not address the shift seen in his hearing from entry to departure from service, and did not note that the Veteran’s construction work was as a bricklayer. Thus, the Board finds the examiner’s opinion has little probative weight. The Board finds that the competent and credible evidence of record shows that the Veteran’s current bilateral hearing loss began during service and has been recurrent since that time. The Veteran is competent to report the onset and continuation of his hearing loss, and the Board finds his statements credible. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); see also Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, the Board finds that the Veteran’s hearing loss had its onset in service due to his exposure to excessive noise, and has continued since that time. 38 C.F.R. § 3.303(b). Accordingly, service connection for bilateral sensorineural hearing loss is warranted. 2. Service connection for tinnitus As an initial matter, the Board observes that tinnitus is readily observable by laypersons and does not require medical expertise to establish its existence. See Charles v. Principi, 16 Vet. App. 370 (2002). Also, as noted above, excessive noise exposure is conceded. The Veteran asserts in his Substantive Appeal that he first noticed his tinnitus when he returned home from the service. He wrote, “I had never heard of tinnitus. I always thought it was crickets I was hearing or running water as my room was in the basement of my mother’s house after returning home from the service.” The Veteran is competent to report the onset of his tinnitus. Furthermore, the Board finds that the Veteran’s reports of tinnitus from his time spent in the motor pool are credible. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); see also Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The June 2015 VA examiner reported that the Veteran had recurrent tinnitus. She concluded that the Veteran’s tinnitus was less likely than not a symptom associated with his hearing loss and less likely than not caused by or a result of military noise exposure. She stated that the Veteran’s tinnitus had its onset “about 20 years ago.” As discussed above, the Board has found this examiner’s conclusions less probative as she did not address the conceded noise exposure nor take into account the Veteran’s lay statements regarding the onset of his tinnitus. Moreover, her rationale for the Veteran’s tinnitus regarding his hearing loss appears to be copied and pasted, without any application to this Veteran. The Board has weighed the evidence of record and finds that the credible lay evidence of continuity of symptomology from the Veteran, the diagnosis of recurrent tinnitus, and the conceded noise exposure shows that the elements for service connection for tinnitus have been met. Accordingly, service connection for tinnitus is warranted. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Nelson, Associate Counsel