Citation Nr: 20004181 Decision Date: 01/16/20 Archive Date: 01/16/20 DOCKET NO. 19-16 856 DATE: January 16, 2020 ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is granted. FINDINGS OF FACT 1. The preponderance of medical evidence, including a January 2018 VA examination report, weighs against attributing the Veteran’s bilateral hearing loss to noise exposure during service. 2. The Veteran’s provided competent and credible lay statements that that her tinnitus began within one year of separation from service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran honorably served from August 1990 to June 1991. This matter is before the Board of Veterans Appeals (Board) on appeal from a January 2018 rating decision. 1. Service connection for bilateral hearing loss Legal Criteria For VA purposes, impaired hearing is considered disabling 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 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) 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). To establish service connection, the Veteran is not obliged to show that hearing loss was present during active military service. However, if there is insufficient evidence to establish that a claimed chronic disability was present during service, the evidence must establish the causal link between his current disability and his in-service injury (such as acoustic trauma through exposure to loud noise). Godfrey v. Derwinski, 2 Vet. App. 352 (1992). Factual Background The Veteran’s military occupational specialty (MOS) was Communication-Computer Systems Operation, which does not have an inherent likelihood of hazardous noise exposure. In her October 2018 notice of disagreement (NOD), the Veteran described constant exposure to the Autodin Message Terminal, noting constant noise for 8-hour shifts. She also reported working an additional two shifts a month and never wearing hearing protection. She stated that she was exposed to the noise of jet engines during her break times and that she had no significant noise exposure after service. In the June 2019 substantive appeal the Veteran described her exposure to a noisy high-speed printer for eight hours a day while working in a small enclosed space. A January 2018 VA audiological examination revealed that the Veteran currently has bilateral hearing loss as defined for VA compensation purposes. The examiner opined that it was less likely than not that the Veteran’s bilateral hearing loss was caused by noise exposure during service. The examiner explained that all tests provided indicated that the Veteran had normal hearing at the time of service and that the Veteran’s current hearing loss was not consistent with noise-induced hearing loss. The examiner also noted that the Veteran’s MOS carried a low probability of hazardous noise exposure and that her entrance and separation examinations (ten months apart) showed no significant permanent hearing threshold shift beyond normal test variability. Analysis The Board finds first that, while the Veteran has bilateral hearing loss, which can be a chronic disease under 38 C.F.R. § 3.309(a) (as sensorineural hearing loss), it was not shown as chronic in service or within the one-year presumptive period, did not manifest to a compensable degree within the presumptive period, and was not noted in service with attributable continuity of symptoms. None of the Veteran’s service treatment records (STRs) document any hearing loss symptoms. Thus, service connection on a presumptive basis is not warranted here. Service connection for hearing loss may still be granted on a direct basis. However, in this case, the preponderance of the evidence is against finding that a medical nexus (causal link) exists between the Veteran’s bilateral hearing loss and in-service noise exposure. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. The Board is satisfied that the January 2018 VA examiner’s opinion is adequate for deciding this claim. The examiner’s medical opinion is supported by a thorough rationale, particularly the fact that the Veteran’s current hearing loss is not consistent with noise induced hearing loss and that her MOS was not considered to carry a high risk of loud noise exposure. Additionally, while the lack of a permanent threshold shift during service cannot be the sole basis for a negative nexus opinion, that fact is entitled to some limited probative weight. Moreover, there is no medical evidence of record which conflicts with the VA examiner’s conclusions. The Board has considered the Veteran’s lay statements contending that noise exposure during service is the cause of her current bilateral hearing loss disability. However, while the Board is sympathetic to the Veteran’s contentions, she is not competent (medically qualified) to provide a causal nexus opinion in this case, which involves a medically complex question (because there may be multiple possible causes of hearing loss, including genetics and aging, that are not observable factors). Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, under the facts of this case, the Board must give more probative weight to the medical evidence. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim for service connection for right ear hearing loss must be denied. See 38 U.S.C. § 5107; see generally Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). 2. Service connection for tinnitus Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). An alternative method of establishing the second and third element is by establishing continuity of symptoms, if the disability is listed as a “chronic disease” in relevant VA regulations. 38 C.F.R. § 3.309(a); 38 C.F.R. § 3.303(b). Tinnitus is a qualifying chronic disease. Fountain v. McDonald, 27 Vet. App. 258 (2015). Service connection for certain chronic disorders may be presumed where demonstrated to a compensable degree within 1 year following separation from qualifying service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In Fountain v. McDonald, 27 Vet. App. 258 (2015), the Court determined that tinnitus is an “organic disease of the nervous system” subject to presumptive service connection where there is evidence of acoustic trauma and nerve damage. Factual Background & Analysis The Veteran contends that her tinnitus was caused by noise exposure in service. The Veteran stated during the January 2018 VA examination that her tinnitus “started in 1991, it just started and never left.” Tinnitus is a rare type of disability that, in the vast majority of cases, may be established on the basis of lay evidence alone. See Charles v. Principi, 16 Vet. App. 370 (2002). Whenever 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 Veteran. 38 U.S.C. § 5107 (b). In this case, the Veteran has provided competent and credible lay statements that she had prolonged noise exposure to printers and intermittent noise exposure to airplane engine noise. (Continued on the next page)   Moreover, the Veteran is competent to report experiencing the symptom of ringing in the ears. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). This testimony is credible and consistent with the circumstances of her service, and the Board finds his testimony to be probative and credible. Resolving reasonable doubt in the Veteran’s favor, the Board finds that it is at least as likely as not that tinnitus began during service. As tinnitus is a “chronic” disease under 38 C.F.R. § 3.309 (a), the subsequent manifestation of tinnitus within 1 year following separation from service warrants a grant of service connection per 38 C.F.R. § 3.309 (a). VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kyle McKone 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.