Citation Nr: 19166325 Decision Date: 08/27/19 Archive Date: 08/27/19 DOCKET NO. 17-36 917 DATE: August 27, 2019 ORDER Resolving all reasonable doubt in favor of the Veteran, entitlement to service connection for bilateral hearing loss is granted. Resolving all reasonable doubt in favor of the Veteran, entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. Resolving all reasonable doubt in favor of the Veteran, his bilateral hearing loss was at least as likely as not related to his active duty service. 2. Resolving all reasonable doubt in favor of the Veteran, his tinnitus was at least as likely as not related to his active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1101, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1101, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1957 to January 1958. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2017 rating decision. In May 2017. the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the proceedings is associated with the electronic claims file. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § § 3.303. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § § 3.303(d). Service connection may be presumed for certain chronic diseases which develop to a compensable degree within one year after discharge from service, even though there is no evidence of such disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. § 3.307, 3.309(a). Where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has that chronic disability, service connection can be granted. 38 C.F.R. § § 3.303(b). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptoms after service may serve as an alternative method of establishing service connection. Id. Continuity of symptoms may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post- service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Continuity of symptoms applies only to those conditions explicitly recognized as chronic. 38 C.F.R. § § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the 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 is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 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’s military occupational specialty (MOS) was noted to be that of an aircraft mechanic. The Veteran’s STRs are negative for complaint or finding of hearing loss. A VA examination in January 2017 found the Veteran did have hearing loss and tinnitus, but that his hearing loss was less likely than not related to his active duty service. In his May 2017 hearing testimony, the Veteran stated that his hearing loss and tinnitus began during his active duty service. An April 2019 private medical record showed the Veteran did have hearing loss and tinnitus. The examiner noted that the Veteran had been his patient for 20 years. The physician stated that the Veteran developed hearing loss and tinnitus during service due to auditory trauma from jet engines and flight line noise. He noted that over the past 2 years the Veteran’s hearing loss had progressed. The examiner noted an April 2019 private auditory examination. The Board acknowledges that a VA examination indicated that the Veteran’s bilateral hearing loss and tinnitus were less likely as not related to the Veteran’s in-service noise exposure. However, in deciding an 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 favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Where there are conflicting statements or opinions from medical professionals, it is within the Board’s province to weigh the probative value of those opinions. Greater weight may be placed on one examiner’s opinion over another depending on factors such as reasoning employed by the examiner and whether, and the extent to which, the examiner reviewed prior clinical records and other evidence. Gabrielson, 7 Vet. App. at 40. Additionally, the thoroughness and detail of a medical opinion are among the factors for assessing the probative value of the opinion. See Prejean v. West, 13 Vet. App. 444 (2000). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a 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(b); 38 C.F.R. § 3.102. As such, the Board affords the April 2019 private medical opinion of the Veteran’s treating provider more probative weight than the one-time 2017 VA examination. The Board finds that the VA examination based the lack of service connection upon the assumption that the Veteran’s hearing was within normal limits upon his separation from service. The Board notes that it is not enough rationale for a negative nexus opinion merely to state that the Veteran’s hearing was within normal limits during service. In such a case, service connection is not precluded if there is enough evidence to demonstrate a relationship between the appellant’s service and a current disability which satisfies 38 C.F.R. § 3.385. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). In this matter, the Veteran has stated that his hearing loss and tinnitus began while in-service. The Veteran is competent to describe observable symptoms of hearing loss and relate when such symptoms began. Jandreau, 492 F.3d 1372. VA has conceded noise exposure in-service due to the Veteran’s MOS. There has been no other documented noise exposure – either civilian or recreational – which could account for the Veteran’s hearing loss or tinnitus. The April 2019 examiner stated that the Veteran’s hearing loss and tinnitus could be associated with his well-documented and conceded noise-exposure in-service. As such, and resolving all reasonable doubt in the Veteran’s favor, the Board finds the evidence of record is in equipoise as to whether the Veteran’s hearing loss and tinnitus are related to his active duty service. Thus, the Board finds that service connection for the Veteran’s bilateral hearing loss and tinnitus is warranted. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Parrish, 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.