Citation Nr: 21002123 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 18-43 134 DATE: January 12, 2021 ORDER Service connection for bilateral tinnitus is granted. Service connection for a right ear hearing loss disability is granted. REMANDED Service connection for a left ear hearing loss disability is remanded. FINDINGS OF FACT 1. The Veteran’s tinnitus is attributable to service. 2. The Veteran’s right ear hearing loss disability is attributable to service. CONCLUSIONS OF LAW 1. 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, 3.309 (2019). 2. The criteria for service connection for a right ear hearing loss disability have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309, 3.385 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1965 to May 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2016 rating decision by the Department of Veterans Affairs (VA). While the Veteran requested a Board hearing, the record reflects November 2020 correspondence from the Veteran withdrawing his hearing request. Therefore, the Board considers the hearing request to be withdrawn and finds it may proceed with adjudication. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Hearing loss will be considered a disability for VA purposes when the threshold level in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz (Hz) is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores utilizing recorded Maryland CNC word lists are less than 94 percent. 38 C.F.R. § 3.385; see also Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007). Service connection may also be awarded on a presumptive basis for certain chronic diseases, to include tinnitus (an organic disease of the nervous system), listed in 38 C.F.R. § 3.309(a), that manifest to a degree of 10 percent within one year of service separation. Id. §§ 3.303(b), 3.307. Service connection may be awarded on the basis of continuity of symptomatology for those conditions listed in 38 C.F.R. § 3.309(a) if a claimant demonstrates (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.303(b). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Lay evidence may be competent evidence to establish that an event or injury occurred during service. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 1. Service connection for tinnitus is granted. The Veteran is seeking service connection for tinnitus. The Veteran contends that he has experienced tinnitus since service. After a careful review of the evidence of record and resolving reasonable doubt in the Veteran’s favor, the Board finds that service connection for tinnitus is warranted. A veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1995); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Here, the Board finds that the Veteran is competent to report noise exposure and ringing in the ears since service. Further, the June 2016 VA examiner conceded noise exposure in service. The Veteran stated that he has experienced tinnitus since service. The Veteran contends that during his time in service, he worked as an air traffic controller and was exposed to M-14 rifle fire and .45 caliber pistol fire without hearing protection. Further, as an air traffic controller, he was exposed to jet aircraft noise while on the flight line. The Veteran’s DD Form 214 details his MOS as Aviation Electronics Operator. A military personnel record stated the Veteran completed the Air Control/Anti-Aircraft Warfare Electronic Operator Course 6-66 in February 1966. His contentions are consistent with his service. Accordingly, the Board finds the Veteran’s competent statements concerning the continuity of symptomatology of his tinnitus to be credible and ultimately probative. The Board acknowledges the June 2016 VA examiner’s opinion that the Veteran’s tinnitus was less likely than not related to his military service. The examiner based his opinion on the fact that the Veteran’s service treatment records do not include any hearing injury in service. However, the fact that there was no specific hearing injury in service is not dispositive of the issue and an opinion based on this fact is inadequate. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). As such, the Board accords this opinion little probative weight. The Board finds the Veteran competent and credible in his allegations of what occurred in service and thereafter regarding his noise exposure. Specifically, the Board finds it plausible and reasonable to consider the Veteran’s consistent statements that he was exposed to hazardous noise in service and has been experiencing tinnitus since service. Therefore, the Board resolves reasonable doubt in favor of the Veteran and finds that it is at least as likely as not that his tinnitus is related to active duty service. Service connection is warranted. 2. Service connection for a right ear hearing loss disability is granted. The Veteran is seeking service connection for a right ear hearing loss disability. The Veteran contends that his hearing loss disability is the result of his active military service, including in-service noise exposure. After a careful review of the evidence of record and resolving reasonable doubt in the Veteran’s favor, the Board finds that service connection for a right ear hearing loss disability is warranted. First, the Veteran has current a right ear hearing loss disability for VA purposes. Indeed, findings of a June 2016 VA examination show puretone thresholds which meet a disability threshold for VA purposes. Second, as noted above, the Board has found that the Veteran was exposed to hazardous noise in service. Finally, the remaining question on appeal is whether the evidence is at least in equipoise on a nexus between the Veteran’s currently diagnosed right ear hearing loss disability and his service. The Veteran stated that he has experienced hearing loss since service. The Veteran is competent to report what he experiences. Accordingly, the Board finds the Veteran’s competent statements concerning the continuity of symptomatology of his hearing loss to be credible and ultimately probative. The Board acknowledges the June 2016 opinion by a VA examiner that the Veteran’s right ear hearing loss was less likely than not related to his military service. The examiner based his opinion on the fact that the Veteran’s service treatment records do not include any hearing injury in service. However, the fact that there was no specific hearing injury in service is not dispositive of the issue and an opinion based on this fact is inadequate. See Hensley, 5 Vet. App. at 157. As such, the Board accords this opinion little probative weight. The Board finds the Veteran competent and credible in his allegations of what occurred in service and thereafter regarding his noise exposure. Specifically, the Board finds it plausible and reasonable to consider the Veteran’s consistent statements that he was exposed to hazardous noise in service and has been experiencing hearing loss since service. Therefore, the Board resolves reasonable doubt in favor of the Veteran and finds that it is at least as likely as not that his right ear hearing loss disability is related to active duty service. Service connection is warranted. REASONS FOR REMAND Service connection for a left ear hearing loss disability is remanded. A veteran is presumed to have been sound upon entry into the military, except as to conditions noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111 (2012); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff’d 749 F.3d 1370 (Fed. Cir. 2014). Once the presumption of soundness applies, the burden of proof shifts to and remains with VA to prove both preexistence and the absence of aggravation by clear and unmistakable evidence. Horn v. Shinseki, 25 Vet. App. 231 (2012). The June 2016 VA examiner opined that the Veteran had a pre-existing left ear hearing loss disability that was not aggravated by his in-service hazardous noise exposure. The examiner based his opinion on the fact that there was no specific hearing injury in service, and that delayed onset hearing loss and tinnitus due to noise exposure are unlikely to occur. However, the fact that there was no specific hearing injury in service is not dispositive of the issue and an opinion based on this fact is inadequate. See Hensley, 5 Vet. App. at 157. Further, the examiner did not address whether there is clear and unmistakable evidence that the Veteran’s left ear hearing loss disability was not aggravated (i.e. underwent a permanent worsening) by his in-service hazardous noise exposure. Further, while the Veteran’s June 1965 entrance examination indicates a threshold level of 50 decibels at 4000 hertz in his left ear, it is lacking any specific auditory testing. Additionally, there is no hearing loss mentioned anywhere else throughout the Veteran’s service treatment records. As such, an addendum opinion is required to address whether the Veteran had a pre-existing left ear hearing loss disability and if so, whether there is clear and unmistakable evidence that it was not aggravated by his in-service hazardous noise exposure. The matters are REMANDED for the following action: 1. The AOJ should obtain updated VA and private treatment records. 2. After the above development is completed, the AOJ should obtain an addendum opinion regarding the Veteran’s left ear hearing loss disability. The examiner should review the claims file (including this remand) and note such review was conducted. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: (a) Is there clear and unmistakable evidence (i.e. undebatable evidence) that the Veteran’s left ear hearing loss disability preexisted his active duty service from December 1965 to May 1966? (b) Is there clear and unmistakable evidence (i.e. undebatable evidence) that the Veteran’s left ear hearing loss disability was NOT aggravated (i.e. underwent a permanent worsening) by his in-service hazardous noise exposure? In formulating this opinion, the examiner should consider that the fact that there was no specific hearing injury in service is not dispositive of the issue and an opinion based on this fact is inadequate. The examiner should also note that the Board has conceded in-service noise exposure and the Veteran is now service-connected for right ear hearing loss and tinnitus. (Continued on the next page)   A detailed explanation is required to support the opinion. A complete and thorough rationale must be provided for any opinions expressed with consideration given to all evidence of record. If the examiner is unable to offer the opinion requested, he or she must explain in detail why that is the case. If the inability to opine is due to the fact that the examiner lacks the expertise to render such an opinion, or due to the fact that some additional testing or information is needed, and possibly available, that would permit such an opinion, the examiner should clearly and specifically state so, and, if applicable, the examiner should also state precisely what additional testing or information is needed in order to render the requested opinion. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. Kerner, 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.