Citation Nr: 19190827 Decision Date: 12/03/19 Archive Date: 12/03/19 DOCKET NO. 17-13 353 DATE: December 3, 2019 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 was exposed to acoustic trauma (loud noise) while in service. 2. Symptoms of bilateral hearing loss have been continuous since separation from service. 3. The Veteran has a current disability of bilateral hearing loss. 4. The Veteran’s tinnitus is related to in-service acoustic trauma consistent with his service in Vietnam. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307 (a)(3), 3.309(a), 3.385. 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1969 to April 1973 and from January 1974 to January 1976. This case comes before the Board of Veteran’s Appeals (Board) on appeal from a June 2015 notification letter issued by the Department of Veterans Affairs (VA) Regional Office in New Orleans, Louisiana. The Veteran requested a Board hearing which was scheduled for September 6, 2019. However, the Veteran cancelled the hearing. Consequently, he is deemed to have waived his hearing request. See 38 C.F.R. §§ 20.703, 20.704 (2018). Service Connection 1. Entitlement to service connection for bilateral hearing loss and tinnitus is granted. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) an in-service injury, event, or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Certain chronic diseases, to include hearing loss, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). An alternative method of establishing the second and third Shedden elements for disabilities identified as chronic diseases in 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-41 (1994). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. Prejean v. West, 13 Vet. App. 444, 448-49 (2000). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). For purposes of applying the laws administered by VA, impaired hearing will be considered 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. The Veteran contends that he experienced the onset of chronic hearing loss and tinnitus during active duty. In the October 2016 notice of disagreement, the Veteran stated that his hearing loss was caused by his service, and that “the acoustic trauma I was exposed to including combat zone service in Vietnam damaged my hearing receptors…Not only was I exposed to acoustic trauma as an engineer, but as an MP as well. The Veteran further stated that, “the tinnitus started on active duty and continues today.” See October 2016 Notice of Disagreement. The Board initially concedes a current diagnosis of bilateral sensorineural hearing loss. The Veteran underwent a Compensation and Pension (C&P) Examination in June 2015 which revealed audiometric readings sufficient to establish hearing loss for VA purposes. Thus, the inquiry turns to whether this hearing loss is related to in-service noise exposure. His pure tone thresholds, in decibels were as follows: HERTZ 500 1000 2000 3000 4000 Right 40 40 50 60 80 Left 35 40 50 60 65 The Board finds that the Veteran experienced in-service acoustic trauma. As detailed above, the Veteran has reported exposure to acoustic trauma from various loud noises during service in Vietnam. The Veteran is competent to report loud noise exposure in service. See Bennett v. Brown, 10 Vet. App. 178 (1997) (the Board may rely upon lay testimony as to observable facts). The Board finds the Veteran’s account of in-service noise exposure to be credible and consistent with the places, types, and circumstances of his service. See DD Form 214 (reflecting “metal worker and base construction equip”); see also 38 U.S.C. § 1154 (a) (West 2014). Accordingly, the Board finds that the Veteran was exposed to acoustic trauma during service. The final question is whether the Veteran’s current bilateral hearing loss is related to the above-mentioned in-service noise exposure. The June 2015 C&P examination opined that it was not at least as likely as not (50/50 probability) that the Veteran’s current hearing loss and tinnitus condition is related to his miliary service. But notes the Veterans tinnitus is at least as likely as not a symptom associated with the hearing loss, as tinnitus is known to be a symptom associated with hearing loss. The examiner’s rationale that the hearing loss and tinnitus are not due to the Veteran’s service, is focused on the fact that the Veteran’s January 1974 induction and December 1975 separation audio examinations revealed hearing within normal limits respectively as follows: Induction January 8, 1974 HERTZ 500 1000 2000 3000 4000 Right 15 10 5 10 Left 25 10 5 10 Separation exam – December 3, 1975 HERTZ 500 1000 2000 3000 4000 Right 15 15 5 5 10 Left 10 10 5 15 15 While the Board acknowledges the opinion of the June 2015 examiner, it does not give it significant weight. The examiner failed to consider the Veteran’s lay statements regarding in-service acoustic trauma and also failed to discuss the Veteran’s initial 1969 entrance examination from his first period of service. See below. This opinion is inadequate. The examiner failed to discuss the 1969 entrance exam which is relevant in showing significant threshold shifts the Veteran experienced while in service from 1969 to 1973. Although the service treatment records do not show a separation exam for 1973, the Veteran began his second period of service in January 1974, and the January 1974 entrance exam shows a significant threshold shift. Auditory shifts within service records, even if not amounting to a hearing loss disability under 38 C.F.R. § 3.385, are still relevant and must be discussed. His pure tone thresholds, in decibels were as follows: Entrance January 24, 1969 HERTZ 500 1000 2000 3000 4000 Right 0 0 0 0 Left 0 0 0 0 The Board finds the evidence is at least in equipoise on the question of whether the Veteran’s symptoms of bilateral hearing loss and tinnitus have been continuous since service. Although the Veteran was not specifically diagnosed with a hearing loss disability of either ear in active service, such is not required. See 38 C.F.R. § 3.303(d) (providing service connection may be granted for any disease diagnosed after service when the evidence establishes in-service incurrence); Hensley, at 159 (holding that service connection is not precluded for hearing loss which first met VA’s definition of disability at 38 C.F.R. § 3.385 after service). The evidence of record demonstrates acoustic trauma in service and the Veteran has reported noticing that hearing was diminished during service and continued to worsen since service separation. Service treatment records do not contain any complaints, symptoms, diagnoses, or treatment attributed to hearing loss. The absence of contemporaneous medical evidence is one factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an “absolute bar” to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) (“Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms”). Throughout the course of this appeal, the Veteran has contended that tinnitus and bilateral hearing loss began during service and has continued since service separation. See June 2015 C&P examination. The Board finds that the Veteran has made credible statements that tinnitus symptoms began in active service and have been continuous since service. See Layno, 6 Vet. App. at 465 (competent lay evidence can be provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person). The Board also finds the Veteran’s assertions of the onset of bilateral hearing loss during service and his reports that he has had bilateral ear hearing loss symptomatology since service, in the context of the demonstrated in-service acoustic trauma, current diagnoses, and the lack of probative evidence to the contrary, to be credible. The examiner concluded that tinnitus was associated with hearing loss and since tinnitus existed during service the hearing loss must have existed then as well. For these reasons, and resolving reasonable doubt in the Veteran’s favor, the Board finds that, based on continuous post-service symptoms of tinnitus and hearing loss, hearing loss service connection for bilateral hearing loss is warranted under 38 C.F.R. § 3.303(b). 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The claims are granted. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Johnson, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.