Citation Nr: 19164591 Decision Date: 08/20/19 Archive Date: 08/20/19 DOCKET NO. 16-24 563 DATE: August 20, 2019 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for a chronic disability manifested by vertigo is granted. FINDING OF FACT Bilateral hearing loss and a chronic disability manifested by vertigo diagnosed as benign positional vertigo had their onset during service. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss and a chronic disability manifested by vertigo diagnosed as benign positional vertigo have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.3.07, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from October 1966 to September 1992. In December 2018 the Veteran testified at a hearing before the undersigned at the regional office (RO) and a transcript of that hearing has been associated with the claims file. The Service Connection Claims The Veteran in writings to VA and at his personal hearing claimed, in substance his bilateral hearing loss and chronic vertigo are due to the concussive blasts he was subject too as an artillery officer for over two decades while on active duty. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including sensor neural hearing loss, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this regard, in order to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection for impaired hearing is subject to 38 C.F.R. § 3.385, which provides that 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. The requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a claimant’s period of active military service in order for service connection to be granted. 38 C.F.R. § 3.385 does not prevent a claimant from establishing service connection on the basis of post-service evidence of hearing loss related to service when there were no audiometric scores reported at separation from service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The regulation does not necessarily preclude service connection for hearing loss that first met the regulation’s requirements after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Thus, a claimant who seeks to establish service connection for a current hearing disability must show, as is required in a claim for service connection for any disability, that a current disability is the result of an injury or disease incurred in service, the determination of which depends on a review of all the evidence of record including that pertinent to service. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303 and 3.304; Hensley, 5 Vet. App. at 159-60. The United States Court of Appeals for Veterans Claims (Court) in Hensley also held that “audiometric testing measures threshold hearing levels (in decibels (dB)) over a range of frequencies (in Hertz (Hz)); the threshold for normal hearing is from 0 to 20 dB, and higher threshold levels indicate some degree of hearing loss.” Hensley, 5 Vet. App. at 157. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). In this regard, the Veteran’s service personnel records show he served on active duty with the United States Army from October 1966 to September 1992 and his occupational specialty included being an artillery officer for many years. Tellingly, service treatment records also document the Veteran’s complaints or treatment for ear pain and/or infection (see, example, service treatment records dated in October 1970, August 1977, October 1984, November 1984, November 1985, and November 1986; examination history dated in March 1965), document on audiological examination his having increased thresholds (see, example, audiological examinations dated in October, 1970, November 1973, August 1980, June 1982, March 1985, March 1987, and July 1992), show on one occasion his being diagnosed with hearing loss in the left ear as defined by VA ear (see, example, audiological examinations dated in May 1989 ), and document his complaints and/or treatment for dizziness diagnosed as vertigo and/or vestibular neuronitis (see, example, service treatment records dated in April 1977, May 1977, September 1978, October 1978; examination history dated in March 1987 and July 1992). Moreover, in writings to VA as well as at his personal hearing, the Board finds that the Veteran competently and credibly reported on how by carryout out his duties in artillery he was repeatedly subject to cannon fire. See Owens, supra. The record also shows that the RO already granted service connection for tinnitus in January 1994 rating decision. Therefore, the Board will concede the Veteran had an in-service injuries (i.e., acoustic trauma and ear infections). The record also shows the Veteran being diagnosed with bilateral hearing loss and a benign positional vertigo. See, e.g., VA examinations dated in March 2013; VA audiological treatment record dated in December 2014; treatment records from Scott & White Round Rock dated in June 2011. Moreover, the Board finds that the Veteran is both competent to report observing symptoms of his bilateral hearing loss (i.e., difficulty hearing people talk) and a chronic disability manifested by vertigo (i.e., dizziness) during and since service where he served as an artillery officer and that his personal hearing testimony regarding having observable symptoms of his bilateral hearing loss (i.e., difficulty hearing people talk) and a chronic disability manifested by vertigo (i.e., dizziness) since that time is credible. See Owens, supra; Davidson, supra. Considering the Veteran’s occupational specialty, his in-service injuries (i.e., acoustic trauma and ear infections), the credible history of observing symptoms of his bilateral hearing loss (i.e., difficulty hearing people talk) and a chronic disability manifested by vertigo (i.e., dizziness) in and since service provided at his personal hearing, and the diagnosis of left ear hearing loss by the March 2013 VA examiner, right ear hearing loss in the December 2014 VA treatment records, and benign positional vertigo by Scott & White Round Rock in June 2011, the Board finds that service connection for bilateral hearing loss and a chronic disability manifested by vertigo diagnosed as benign positional vertigo is warranted because the disabilities had their onset in service. (Continued on the next page)   In reaching this conclusion, the Board has not overlooked the negative etiology opinion provided by the March 2013 VA examiner as to the origins of the left ear hearing loss. However, because symptoms of hearing loss in and since service are observable by a lay person, because the examiner did not appear to consider either the Veteran’s competent and credible lay claims of observable adverse symptomatology nor the claimant’s many years of service in artillery, and because the opinion was based entirely on negative evidence, the Board finds that the VA examiner’s etiology opinion is not credible. See Madden v. Gober, 125 F.3d. 1477 1481 (Fed. Cir. 1997) (holding that the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) (“the probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators...”); Dalton v. Nicholson, 12 Vet. App. 23 (2007) (holding that the lack of documentary evidence during or after service cannot be the sole basis for an opinion against the claim). Therefore, the Board finds that the question of whether the Veteran’s bilateral hearing loss and a chronic disability manifested by vertigo diagnosed as benign positional vertigo had continued since service is in equipoise and with affording him the benefit of the doubt the Board concludes that they did, and service connection is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, supra. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Neil T. Werner, 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.