Citation Nr: 20022546 Decision Date: 04/01/20 Archive Date: 04/01/20 DOCKET NO. 17-09 628 DATE: April 1, 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 favor of the Veteran, his bilateral hearing loss is related to service. 2. Resolving reasonable doubt in favor of the Veteran, his 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. §§ 1154(a), 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1154(a), 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1963 to April 1966. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. The Board notes that in May 2018, the Veteran submitted a signed Rapid Appeal Modernization (RAMP) opt-in election form; however, he did not select a "review option" for his appeal as required for a complete election. Additionally, at the time of submission of the election form, the Veteran’s appeal had already been certified to the Board and the record indicates that the Veteran did not fill out a subsequent RAMP opt-in election notification form. Accordingly, the election cannot be accepted as a valid RAMP opt-in. Even assuming the Veteran or his representative did submit a valid, signed RAMP opt-in election form, the Board can proceed with this decision because it is a full grant of the benefits sought on appeal. This will not prejudice the Veteran because it is in his best interest for the Board to issue a decision, which will result in a faster resolution of this claim. Service Connection 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. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurrent in service. 38 C.F.R. § 3.303(d). Generally, to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including tinnitus and hearing loss, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 C.F.R. §§ 3.307, 3.309. Alternatively, service connection may also be granted for chronic conditions that have manifested continuous symptomology since separation of service. Id. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for bilateral hearing loss The Veteran contends that he developed bilateral hearing loss as a result of in-service noise exposure. Impaired hearing will be considered a disability for purposes of laws administered by VA when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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 failure to meet these criteria at the time of a Veteran’s separation from active service is not necessarily a bar to service connection for hearing loss disability. A veteran “may nevertheless establish service connection for a current hearing loss disability by submitting evidence that the current disability is related to service.” Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993); see 38 C.F.R. § 3.303(d). Turning to the evidence of record, the Veteran has a diagnosis of bilateral hearing loss for VA purposes under 38 C.F.R. § 3.385, as shown by the audiometric data in his September 2014 VA examination. Thus, a current disability is established. Next, the Veteran provided lay testimony that he was exposed to excessive noise during service. Specifically, he reported significant in-service noise exposure from heavy equipment, generators, and gunfire. See November 2019 Board hearing transcript, pp. 5-7. The Veteran’s descriptions of in-service noise exposure are consistent with the circumstances of his time in service working as a mechanical fire controlman, which the Agency of Original Jurisdiction (AOJ) conceded carries a high probability of acoustic trauma. See February 2017 Statement of the Case (SOC). As such, in-service noise exposure is established. Therefore, the remaining inquiry is whether the Veteran’s current bilateral hearing loss is related to his in-service noise exposure. In this regard, the Veteran submitted an opinion from a private audiologist that his hearing loss condition is a result of his noise exposure during miliary service. See January 2020 opinion. While the private audiologist did not provide a complete rationale for this opinion, she noted that she reviewed the Veteran’s provided medical history, including VA treatment notes and in-service entrance and exist hearing tests, and considered his reports of in-service noise exposure. She also explained that the Veteran denied any recreational or occupational noise exposure after service. Additionally, the Veteran has provided competent and credible lay statements regarding the continuity of his symptoms. He asserted that he experienced some hearing loss while in service and continued to experience hearing loss after service. See November 2019 Board hearing transcript, p. 6. The Board notes that the Veteran is competent to report his hearing loss symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran’s spouse also submitted a statement that the Veteran has experienced hearing difficulties throughout the twenty-three years she has known the Veteran. See November 2019 buddy statement. As the Board has no reason to doubt the credibility of these statements, they are given great probative weight. The Board is aware that the October 2014 VA examiner concluded that the Veteran’s hearing loss is less likely than not related to service because his hearing was within normal limits during and/or shortly following active military service. The examiner also cited Institute of Medicine research indicating there are insufficient scientific bases to conclude that permanent hearing loss, that is directly attributable to noise exposure, will develop long after noise exposure. However, the Board finds this opinion is inadequate because it is essentially based on the absence of any documented hearing loss in service or at separation from service. The Board notes that the Veteran does not have to show hearing loss at the time of discharge to establish service connection. Hensley v. Brown, 5 Vet. App. at 155. As such, the Board affords no probative weight to this opinion. In light of the foregoing, the Board finds that the evidence of record is at the very least in equipoise, requiring that reasonable doubt be resolved in the Veteran’s favor. See 38 U.S.C. § 5107(b); Wise v. Shinseki, 26 Vet. App. 517 (2014). Therefore, the Board finds that entitlement to service connection for bilateral hearing loss is warranted. 2. Entitlement to service connection for tinnitus As an initial matter, the Board notes that tinnitus is a condition that may be diagnosed by its unique and readily identifiable features, and the presence of the disorder is not a determination that is medical in nature and is capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). In the present case, the Veteran contends that his tinnitus is related to noise exposure during service. Although the Veteran’s service treatment records (STRs) are silent for any complaints of tinnitus, the Board notes that the AOJ found that the Veteran’s military occupational specialty (MOS) of a mechanical fire controlman carries a high probability of acoustic trauma. See February 2017 SOC. Therefore, the remaining question before the Board is whether there is a nexus or link between the Veteran’s current tinnitus and his military service. In this case, the Board finds that there is competent and credible lay evidence to establish that the Veteran’s tinnitus is related to service. The Veteran testified that his ears started to ring while he was in service and that he continued to experience tinnitus since service. See November 2019 Board hearing transcript, p. 6. Moreover, the Veteran’s brother submitted a statement that the Veteran complained about the constant ringing in his ears during his time in service and attributed the ringing to exposure to rifle and cannon fire. See November 2019 buddy statement. The Veteran is competent to identify tinnitus, to include the onset of the disorder and the continuity since his discharge. The Veteran’s assertions regarding the onset of his tinnitus are also credible. In this regard, the Veteran has consistently expressed that his tinnitus began in service and his assertions are corroborated by his brother’s statement that the Veteran reported ringing in his ears during his time in service. As such, the Board assigns great probative weight to the Veteran’s lay statements regarding tinnitus. The Board is aware of the October 2014 VA examiner’s opinion that it is less likely than not that the Veteran’s tinnitus is related to service because there was no report or complaint of tinnitus in his STRs. This opinion is not probative as the examiner did not consider the Veteran’s competent and consistent reports that he had an onset of tinnitus in service. Further, it does not appear the Veteran was given an opportunity to describe the onset and history of his tinnitus prior to the examiner’s negative nexus determination. Accordingly, the evidence is at least in equipoise as to whether the Veteran’s tinnitus is related to service. Therefore, after resolving all reasonable doubt in favor of the Veteran, service connection for tinnitus is granted. See 38 C.F.R. § 5107. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda Purcell, 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.