Citation Nr: 20005355 Decision Date: 01/22/20 Archive Date: 01/22/20 DOCKET NO. 17-17 932 DATE: January 22, 2020 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to an initial compensable rating for a bilateral foot stress fracture, claimed as bilateral foot condition. FINDINGS OF FACT 1. Resolving all doubt in the Veteran’s favor, the Board finds the Veteran’s currently diagnosed bilateral hearing loss was incurred during active service. 2. Resolving all doubt in the Veteran’s favor, the Board finds the Veteran’s tinnitus was incurred during active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from September 1963 to September 1965. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from December 2014 and June 2017 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In November 2019, the Veteran testified at a Board hearing conducted by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran’s VA claims file. Service Connection In order to establish service connection for a claimed disability, the following elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 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. 38 C.F.R. § 3.303(b), Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the present of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Although lay persons are considered competent to provide opinions on some medical issues, some medical issues fall outside of the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011). When there is no diagnosis of hearing loss in service, the absence of documented hearing loss in service is not fatal to a service connection claim for such disability, especially if service records indicate a significant in-service threshold shift. Ledford v. Derwinski, 3 Vet. App. 87 (1992); Hensley v. Brown, 5 Vet. App. 155 (1993). Establishing service connection is possible if the current hearing loss can be adequately linked to service. Ledford, 3 Vet. App. at 89. 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 the current disability is the result of an injury or disease incurred in service; the determination of which depends on a review of all of the evidence of record. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Additionally, other organic diseases of the nervous system, such as sensorineural hearing loss, are classified as “chronic diseases” under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) also applies. 38 C.F.R. § 3.307; Walker, 708 F.3d at 1338. Presumptive service connection for “chronic diseases” must be considered on three bases: chronicity during service, continuity of symptomatology since service, and manifestations within one year of the veteran’s separation from service. Id. 1. Entitlement to service connection for bilateral hearing loss. In this case, the Veteran contends he is suffering from bilateral hearing loss as the result of his active duty military service. Specifically, he contends he was exposed to noise from his military occupational specialty (MOS). During his hearing, he testified that he was assigned to the howitzer division at Fort Bragg, North Carolina. The agency of original jurisdiction (AOJ) acknowledged and conceded noise exposure, in addition, the Board also concedes the Veteran was likely exposed to military noise. The Veteran was afforded a VA audiological examination in December 2014. The Veteran had a puretone threshold average of 49 and a speech discrimination score of 98 percent for the right ear. As for the left ear, the Veteran had a puretone threshold average of 48 and 92 percent speech discrimination score. The examiner diagnosed the Veteran with bilateral sensorineural hearing loss in the frequency of 500 to 4000 Hz. Therefore, for purposes of service connection, the Board finds adequate evidence of a current hearing loss disability for VA benefits purposes. As it pertains to an in-service event or injury, the Veteran testified during his hearing he was exposed to significant noise exposure due to his MOS. He also provided they did not use hearing protection. The Board finds the Veteran competent and credible to discuss the aspects of his MOS. The Board has conceded the Veteran has likely been exposed to noise during service; therefore, given his testimony, the Board finds adequate evidence of an in-service event or injury for purposes of service connection. With regard to a nexus, the Board finds the evidence is at least in relative equipoise as to whether the Veteran’s bilateral hearing loss began during service. The December 2014 examiner opined his hearing loss is likely not related to service because there is no significant shift in hearing from entrance to separation to indicate any permanent damage to the auditory system. The Board finds this medical opinion to be of little probative value. When there is no diagnosis of hearing loss in service, the absence of documented hearing loss in service is not fatal to a service connection claim for such disability. Ledford v. Derwinski, 3 Vet. App. 87 (1992); Hensley v. Brown, 5 Vet. App. 155 (1993). In this instance, the examiner fails to consider the Veteran’s lay statements, MOS, and apply the specific facts to make his decision. Instead, the examiner relies on generic medical text that does not consider causation or etiology. In support of the Veteran’s contentions, he provided lay statements from his brother and daughter. The statement from his brother provides that prior to entering service he did not experience any hearing loss. After his service, however, his brother stated his hearing loss was noticeable as the Veteran began to listen to the radio louder, inter alia. His daughter’s statement echoed similar sentiments. Additionally, evidence from a private medical provider was submitted in support of his contentions. The examiner, Dr. Frederic E. Levy, opined the repeated artillery associate noise exposure had a direct effect contributing to hearing loss. Accordingly, after taking into consideration the Veteran’s testimony, the results from the Veteran’s hearing tests, supporting medical evidence from Dr. Levy, and a claim of continuity of gradual symptoms since service, the Board will find that the evidence of record is at least in equipoise as to this issue, and that service connection for the Veteran’s bilateral hearing loss is therefore warranted. 2. Entitlement to service connection for tinnitus. The Veteran also contends he suffers from tinnitus as a result of his active duty service, specifically, as a result of his MOS. Tinnitus is a disorder uniquely discernable by the senses. Tinnitus is a chronic disease afforded the relaxed standard where there is evidence of acoustic trauma. Fountain v. McDonald, 27 Vet. App. 258, 260 (2015). During the Veteran’s hearing, he testified he first noticed the ringing in his ears during service while firing the howitzer. He stated that he will awaken during the night due to the ringing. During the December 2014 VA audiological examination, the Veteran stated he experiences ringing in the ears and has continued since service. The examiner opined that it is less likely than not (less than 50% probability) caused by or a result of military noise exposure with the rationale that there is no complaint or diagnosis of hearing loss or tinnitus in the Veteran’s service treatment records (STRs). However, the Board finds the examiner’s opinion insufficient and unpersuasive. The examiner fails to take into consideration his MOS and lay statements in regard to the onset of his tinnitus and relationship to military service. In addition, private medical evidence from January 2018, as provided for above, it was the doctor’s opinion that the repeated artillery associated noise exposure had a direct effect contributing to his tinnitus. In summary, the Board finds that, as a disease of the nervous system, the Veteran’s tinnitus can be linked to service based on the Veteran’s credible statements of the onset of bilateral hearing loss and tinnitus since service. Therefore, based on the subjective nature of tinnitus and the Veteran’s lay statements of continuity of symptoms, the Board will find that the evidence is at least in equipoise as to this issue, and that service connection for tinnitus is also warranted. REASONS FOR REMAND Entitlement to an initial compensable rating for a bilateral foot stress fracture, claimed as bilateral foot condition. At the time of his hearing before the Board, the Veteran indicated that his service-connected symptoms of bilateral foot stress fracture had worsened since his last examination in May 2017 and that he did not feel that the examination properly considered the Veteran’s condition at that time. The Board therefore finds that the Veteran should be afforded a new examination by a new examiner to determine the current nature and severity of this service-connected disability. The matters are REMANDED for the following action: Schedule the Veteran for an appropriate VA examination by an examiner other than the May 2017 VA examiner to determine the current nature and severity of his service-connected bilateral foot stress fracture. The entire claims file must be made available to and reviewed by the examiner. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher J. DeBoer, 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.