Citation Nr: 21001284 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 17-53 266 DATE: January 7, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. Bilateral hearing loss had its onset in service. 2. Tinnitus had its onset in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1101, 1111, 1131, 1153, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306. 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. § 1131; 38 C.F.R. § 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1980 to September 1983. The Board testified at a Board hearing in December 2020 before the undersigned Veterans Law Judge (VLJ). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in, or aggravated by, service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Service connection requires competent evidence showing: (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. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009), see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A lay person is competent to report on the onset and reoccurrence of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 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. Gilbert v. Derwinski,1 Vet. App. 49, 57 (1990). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. See 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a). 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. The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). When there is an approximate balance of positive and negative evidence regarding a material issue, the Veteran is given the benefit of the doubt. 38 U.S.C. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to service connection for hearing loss. The Veteran asserts that he has bilateral hearing loss which was caused by acoustic trauma suffered as a motor transport operator while on active duty. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies at 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies at 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. Even though a disabling hearing loss is not demonstrated at separation, a veteran may, nevertheless, establish service connection for a current hearing disability by submitting evidence that a current disability is related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). The post service record shows that the Veteran meets the current disability requirement for bilateral hearing loss, as a May 2015 VA examination shows bilateral hearing loss of sufficient severity to warrant finding a hearing loss disability under 38 C.F.R. § 3.385. Further, the Board concedes that the Veteran had noise exposure in service. The remaining question is whether there is a nexus between the appellant’s in-service noise exposure and his current bilateral hearing loss. The Board notes that the evidence of record contains the Veteran’s lay statement indicating that he has had persistent issues with hearing loss since his time in service. See December 2020 Board Hearing Transcript. While the VA examiner opined in May 2015 that the Veteran’s bilateral hearing loss was less likely than not caused by an event in the military service, the examiner failed to provide adequate rationale, stating only that there was no significant shift in hearing level variability during military service. The VA examiner relied heavily on the lack of significant change in hearing threshold at separation, however this rationale fails to consider the Veteran’s lay statement. The Veteran testified during the December 2020 Board hearing that he observed a decline in his bilateral hearing while on active duty. See December 2020 Board Hearing Transcript. The Veteran is competent and credible to report continued symptoms of his bilateral hearing loss. Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Therefore, the claim is granted. 2. Entitlement to service connection for tinnitus. The Board finds that service connection for tinnitus is warranted. The Veteran reported experiencing tinnitus during the appeal period. See December 2020 Hearing Transcript. The Veteran is competent to describe symptoms observable to his senses; as such, he is also competent to diagnose tinnitus. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Charles v. Principi, 16 Vet. App. 370, 374 (2003). The Board finds him credible, as his statements have been detailed and consistent. Therefore, the Board determines that the first element of service connection is satisfied. As stated above, the Veteran’s military occupational specialty was a motor transport operator. The Veteran explained that he was exposed to noise from vehicles, machinery, and small arms fire with sporadic provision/use of hearing protection devices. See May 2015 VA examination. The Veteran also denied civilian and recreational noise exposure without hearing protection. Id. The Veteran has reported that he began experiencing ringing in her ears while on active duty and has continued since that time, which the Board finds credible. Therefore, in-service injury is conceded. The Veteran competently and credibly reports that his tinnitus began during active duty service and has been recurrent since that time. See Layno v. Brown, 6 Vet. App. 465 (1994); see also December 2020 Hearing Transcript. The Board notes the May 2015 negative nexus VA medical opinion. However, even though his service treatment records are silent for reports of tinnitus in service, the Veteran is competent to give reports of tinnitus in service and continued symptoms since service. Thus, all three elements necessary to establish service connection have been met. See 38 C.F.R. § 3.303, 3.307, 3.309; Fountain v. McDonald, 27 Vet. App. 258 (2015). STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Booker 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.