Citation Nr: 20021791 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 15-21 689 DATE: March 27, 2020 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, bilateral hearing loss is related to service. 2. Resolving reasonable doubt in the Veteran’s favor, tinnitus is related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307(a)(3), 3.309(a), 3.385. 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112,5107; 38 C.F.R. §§ 3.102, 3.303, 3.307(a)(3), 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1968 to April 1970. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from an April 2014 rating decision. The Veteran testified at an April 2016 videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. This matter was previously before the Board in July 2018 when it was remanded for further development. The Board finds there has been substantial compliance with its July 2018 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Service Connection Entitlement to service connection for bilateral hearing loss and tinnitus is granted. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) an in-service injury, event, or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Certain chronic diseases, to include hearing loss, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). An alternative method of establishing the second and third Shedden elements for disabilities identified as chronic diseases in 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In rendering a decision on 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 evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-41 (1994). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. Prejean v. West, 13 Vet. App. 444, 448-49 (2000). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). For purposes of applying the laws administered by VA, impaired hearing will be considered 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 stated frequencies are 26 decibels or greater; or when Maryland CNC speech discrimination scores are less than 94 percent. 38 C.F.R. § 3.385. The Veteran contends that he experienced the onset of hearing loss and tinnitus during active duty. The Veteran stated in his December 2010 Statement in Support of Claim that his hearing loss and tinnitus began approximately 1970. He stated that he was stationed in Germany, as a missile installation and a mechanic during his active duty time. The Veteran further noted in his June 2015 Form 9 that he was operating and maintaining generators that were extremely loud all day for an extended period. He noted that it caused buzzing and headache at the end of each day. The Board initially concedes a current diagnosis of bilateral sensorineural hearing loss. The Veteran underwent a Compensation and Pension (C&P) Examination in April 2019 which revealed audiometric readings sufficient to establish hearing loss for VA purposes. Thus, the inquiry turns to whether this hearing loss is related to in-service noise exposure. His pure tone thresholds, in decibels were as follows: HERTZ 500 1000 2000 3000 4000 Right 50 60 65 70 70 Left 55 65 80 80 85 The Board finds that the Veteran experienced in-service acoustic trauma. As detailed above, the Veteran has reported exposure to acoustic trauma from loud noises as a mechanic and generator operator. The Veteran is competent to report loud noise exposure in service. See Bennett v. Brown, 10 Vet. App. 178 (1997) (the Board may rely upon lay testimony as to observable facts). The Board finds the Veteran’s account of in-service noise exposure to be credible and consistent with the places, types, and circumstances of his service. See DD Form 214 (reflecting “Auto Mechanic”); see also 38 U.S.C. § 1154 (a). The final question is whether the Veteran’s current bilateral hearing loss is related to the above-mentioned in-service noise exposure. The April 2019 examination opined that the Veteran’s hearing loss was not at least as likely as not caused by or a result of an event in military service. The examiner stated that the Veteran’s hearing loss and tinnitus was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner noted the Veteran has a diagnosis of clinical hearing loss, and his tinnitus is at least as likely as not (50 percent probability or greater) a symptom associated with the hearing loss, as tinnitus is known to be a symptom associated with hearing loss. Id. The examiner’s rationale that the hearing loss and tinnitus are not due to the Veteran’s service, is due to a lack of permanent shift in hearing thresholds during service. The examiner stated that the Veteran’s hearing loss is less likely than not a result of military service, and noted that temporary shifts in thresholds are common when actively exposed to hazardous noise, however, hearing returned to normal limits at time of exit from service. The Veteran’s March 1968 enlistment and April 1970 hearing conservation data in pure tone thresholds, in decibels were as follows: March 1968 Enlistment Examination HERTZ 500 1000 2000 3000 4000 Right 15 15 15 15 15 Left 10 10 10 35 35 April 1970 HERTZ 500 1000 2000 3000 4000 Right 10 5 5 15 15 Left 15 10 10 40 40 While the Board acknowledges the opinion of the April 2019 examiner, it does not give it significant weight. The examiner failed to consider or discuss the Veteran’s lay statements regarding in-service acoustic trauma. The examiner failed to discuss the Veteran’s complaints of buzzing and headaches while in service. The Board also finds this exam to be inadequate as it fails to discuss how although the noted shifts in the Veterans hearing from enlistment to separation returned to normal limits, there was a noted change in the Veteran’s hearing. The Veteran is considered competent to report the presence of tinnitus, and there is no indication from the record that his account of current tinnitus is not credible. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (“ringing in the ears is capable of lay observation”). The Board notes that the Veteran has consistently stated that his tinnitus and hearing loss began while in service. See April 2016 Hearing Transcript, June 2015 Form 9, March 2011 and December 2010 Statements in Support of Claim The Board finds the Veteran’s consistent and competent lay statements indicating that he had tinnitus since service to be both credible and probative. Thus, the Board finds the lay statements evidence of continuity of symptomatology of tinnitus since active duty service. The Board further finds that since the Veteran’s tinnitus has existed since service, and the examiner has noted that tinnitus is a symptom associated with hearing loss, the Board finds that the Veteran’s hearing loss must have existed during service as well since tinnitus was a symptom of such hearing loss. Thus, resolving all reasonable doubt in the Veteran's favor, the Board finds that   service connection is warranted for bilateral hearing loss and tinnitus. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The claim is granted. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Johnson, 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.