Citation Nr: 18161174 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 16-59 734 DATE: December 28, 2018 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. FINDINGS OF FACT 1. The competent and probative evidence is at least in equipoise as to whether current bilateral hearing loss had its onset in or is otherwise related to the Veteran’s period of active service. 2. The competent and probative evidence is at least in equipoise as to whether current tinnitus had its onset in or is otherwise related to the Veteran’s period of active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a), 3.385. 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1972 to March 1975. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. After review of the record, the Board finds that the criteria for service connection for bilateral hearing loss and tinnitus have been met. In a claim of service connection for impaired hearing, demonstration of the existence of a current disability is subject to the additional requirements of § 3.385, which provides that service connection for impaired hearing shall not be established until the hearing loss meets pure tone and/or speech recognition criteria. Under this regulation, hearing status will be considered a disability for the purposes of service connection when the auditory thresholds in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies 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. An April 2015 VA examination demonstrates that the requisites for hearing loss for VA purposes have been met in both ears, and includes a diagnosis of tinnitus. See 04/30/2015, C&P Exam; 38 C.F.R. § 3.385. Accordingly, the Board finds competent evidence of current disorders of bilateral hearing loss and tinnitus. The Veteran contends that he experienced in-service noise exposure due to his work with power tools and heavy vehicles. The Veteran’s Record of Service is consistent with the Veteran’s statements regarding the type of work he performed in service. 04/23/2015, Military Personnel Records. Additionally, his contentions are corroborated by a statement from his ex-spouse. 08/25/2015, Buddy Statement. Accordingly, the Board finds that the competent and probative evidence is at least in equipoise as to whether he had in-service noise exposure. The Veteran denied post-service occupational or recreational noise exposure or acoustic trauma. Service records demonstrate positive threshold shifts of 5 to 10 decibels during the Veteran’s period of active service. 04/23/2015, STR-Medical. Although his separation examination does not demonstrate hearing loss for VA purposes under 38 C.F.R. § 3.385, it does demonstrate some level of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (indicating that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss). The Veteran contends that he first noticed ringing in the ears while stationed in Yuma, Arizona, and that the ringing continued throughout service, and has continued since. He also contends that he first noticed diminished hearing while stationed in Okinawa, Japan, and that he has had difficulty with hearing since. 08/25/2015, Correspondence. Statements from the Veteran’s ex-spouse and a former coworker corroborate the Veteran’s statements, including contemporaneous reports by the Veteran of ringing in the ears, and their own observations regarding diminished hearing. 08/25/2015, Buddy Statement. Three private physicians have opined that it is more likely than not that the Veteran’s current hearing loss and tinnitus are due to his in-service noise exposure, citing to the audiological examination performed at separation and lay evidence of in-service and post-service symptomatology. 09/25/2015, Medical-Non-Government; 01/26/2017, Medical-Non-Government; 02/15/2017, Medical-Non-Government; 06/28/2018, Correspondence. The Board acknowledges an April 2015 VA examiner’s opinion that it is less likely than not that hearing loss and tinnitus are related to service. However, the Board assigns the examiner’s opinion little probative weight, as the examiner incorrectly stated that there is no significant hearing loss shown at separation, and failed to properly consider and address lay evidence of in-service noise exposure and in-service and post-service symptomatology. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see also Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992); Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (stating that neither a normal separation examination alone nor the absence of a separation audiometric examination is an adequate basis for a negative nexus opinion in such a case). In light of the foregoing, the Board finds that the competent and probative evidence is at least in equipoise as to whether current bilateral hearing loss and tinnitus had their onset in or are otherwise related to the Veteran’s period of active service. See 38 C.F.R. §§ 3.102, 3.303. In any event, as the disabilities in question, hearing loss and tinnitus, are chronic diseases under 38 C.F.R. § 3.309(a), an award of service connection may be established based on continuity of symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); VA guidance and Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015) (classifying bilateral hearing loss and tinnitus as organic diseases of the nervous system under 38 C.F.R. § 3.309(a)). With consideration of the totality of the relevant evidence, the Board finds that the competent and probative evidence is at least in equipoise as to whether hearing loss and tinnitus were noted in service with post-service continuity of the same symptomatology. Accordingly, any doubt on the material issue of nexus is resolved in the Veteran’s favor, and the claims of service connection for bilateral hearing loss and tinnitus are granted. See 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a); see also Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013) (stating that the primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the “nexus” requirement of the three-element test, whereas the former benefits from presumptive service connection (absent intercurrent causes) or service connection via continuity of symptomatology). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.A. Gelber, Associate Counsel