Citation Nr: 20004643 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 15-01 188 DATE: January 21, 2020 ORDER Entitlement to service connection for bilateral hearing loss disability is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in his favor, the Veteran’s bilateral loss disability is attributable to service. 2. Resolving reasonable doubt in his favor, the Veteran’s tinnitus is attributable to service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss disability have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2018). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from September 1960 to September 1963. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2016, the Veteran testified at a travel Board hearing before a Veterans Law Judge (VLJ). A transcript of that proceeding is of record. However, the VLJ who conducted that hearing no longer works for the Board. In a September 2018 letter, the Veteran was advised that he had the right to another hearing. He did not request another hearing. In January 2019, the Board denied entitlement to service connection for bilateral hearing loss disability and tinnitus. The Veteran appealed to the U. S. Court of Appeals for Veterans Claims (Court/CAVC). In August 2019, the Court granted a Joint Motion for Partial Remand (JMPR) vacating the portion of the Board's decision denying entitlement to service connection for bilateral hearing loss and tinnitus and remanding these issues back to the Board for readjudication. The case has now been returned to the Board for adjudication. Service Connection The Veteran seeks service connection for a bilateral hearing loss disability and tinnitus. After a review of the claim file and resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for both claimed disabilities. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. To establish a right to compensation for a present disability, a Veteran 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- the so-called "nexus" requirement. See Holton v. Shinseki, 557 F.3d 1362, 1366 Caselaw Positive (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 Caselaw Caution (Fed. Cir. 2004)). The Court has held that "the threshold for normal hearing is from 0 to 20 dB [decibels], and higher threshold levels indicate some degree of hearing loss." See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court, in Hensley, indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability. 1. Entitlement to service connection for bilateral hearing loss disability The Veteran contends that his bilateral hearing loss disability is related to noise exposure in service. See December 2016 hearing transcript. At the outset, the Board notes that in-service noise exposure has been conceded. The Veteran was an infantryman in service as such, noise exposure is conceded. See DD-214. Furthermore, the record shows that the Veteran currently has a bilateral hearing loss disability for VA purposes. See August 2013 VA examination. Therefore, the remaining question is whether the currently diagnosed bilateral hearing loss disability is related to service. Upon consideration of the Veteran's in-service noise exposure and the lack of any considerable post-service noise exposure throughout his employment as a chef and life insurance agent, see December 2016 hearing transcript, the Board finds that the Veteran's currently diagnosed bilateral hearing loss disability is traceable to military service and service connection for bilateral hearing loss disability is warranted. The Board acknowledges the September 2017 VA examiner's opinion that the Veteran's bilateral hearing loss disability is not at least as likely as not caused by or a result of an event in military service. However, the reasoning provided is inadequate and accords it little probative weight. The examiner based the opinion primarily on the fact that the Veteran had normal hearing at separation from active duty in 1963, and there were no reports of hearing problems or tinnitus found in the service treatment records. See 2017 C&P examination. The fact that there was no hearing loss in service is not dispositive of the issue and an opinion based on this fact is inadequate. See Hensley, supra. The Board is left with a record which shows the Veteran was exposed to noise in service and who currently has a bilateral hearing loss disability which cannot be conclusively disassociated from his noise exposure in service. Accordingly, resolving reasonable doubt in the Veteran's favor, the Board finds that his bilateral hearing loss disability had its onset in service. Therefore, service connection for bilateral hearing loss disability is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 3.303, 3.304; Gilbert v. Derwinski, 1 Vet. App. 49 Caselaw Caution (1990). 2. Entitlement to service connection for tinnitus The Veteran contends that he has had ringing in his ears since 2004. See December 2016 hearing transcript. The August 2013 and September 2017 VA examiners opined that because there were no records of tinnitus complaints while in service and the Veteran was unable to provide the date of onset or relate the tinnitus to any specific event, service connection was not warranted. However, the Board notes that the fact that the Veteran did not report tinnitus while in service does not preclude the possibility of recurrent, or periodic, tinnitus. Also, the September 2017 VA examiner did not address the Veteran’s reports of limited post-service noise exposure. The Board therefore finds that the examination is inadequate and accords it no probative weight. In the case of a wholly lay-observable disability such as tinnitus, the Veteran is competent to report both its onset date and its persistency since that date. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As such, his reports of tinnitus are entitled to significant probative weight. See August 2013 VA examination and December 2016 hearing transcript. Therefore, the preponderance of the competent evidence of record indicates that Veteran has a current disability of recurrent tinnitus. As noted above, in service noise exposure is conceded and there is no indication in the record of post-service occupational or recreational noise exposure. There is simply no basis upon which to dissociate the Veteran’s tinnitus from his in-service noise exposure. Therefore, resolving all doubt in the Veteran’s favor, the Board finds that the competent evidence of record indicates that the Veteran’s tinnitus was caused by in-service noise exposure and that service connection is therefore warranted. 38 C.F.R. §§ 3.102, 3.303. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Law Clerk for the Board Christina Pollonais 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.