Citation Nr: 21003603 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 18-27 163 DATE: January 22, 2021 ORDER Entitlement to service connection for bilateral sensorineural hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran’s bilateral sensorineural hearing loss began during active service and has continued since then. 2. The Veteran’s tinnitus began during active service and has continued since then. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral sensorineural hearing loss are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 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, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from July 1967 to July 1971. This appeal was last before the Board in June 2019 when it was denied. The Veteran appealed to the Court of Appeals for Veterans Claims (Court) and in a September 2019 Joint Motion for Remand (JMR) the Court ordered the Board to readjudicate the appeal and to address the adequacy of VA examiners’ opinions in light of McCray v. Wilkie, 31 Vet. App. 243 (2019). The Board does so below. Service Connection Service connection will be granted if it is shown that a Veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. “To establish a right to compensation for a present disability, a veteran must show: ‘(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’ - the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In certain cases, competent lay evidence may demonstrate the presence of any of these elements. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The nexus element may also be fulfilled by (1) a nexus opinion or (2) competent and credible evidence showing that the veteran has experienced frequent and persistent symptoms of the disease since service. 38 U.S.C. § 1154(a); 38 C.F.R. §§ 3.303(a), (d); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served for at least 90 days during a period of war and manifests an organic disease of the nervous system to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. Sensorineural hearing loss and tinnitus are included in the list of organic diseases of the nervous system. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. The presumption for chronic diseases relaxes the evidentiary requirements for establishing entitlement to service connection. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012) (holding that “[t]he clear purpose of [subsection 3.303(b)] is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases” and only applies to the chronic diseases set forth in § 3.309(a)). Specifically, § 3.303(b) provides that when a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service (“intercurrent causes”). If the evidence is not sufficient to show that the disease was chronic at the time of service, then the claim may be established with evidence of a continuity of symptoms after service, which is a distinct and lesser evidentiary burden than the nexus element of the three-part test under Shedden. Walker, 708 F.3d at 1338; C.F.R. § 3.303(b). Showing a continuity of symptoms after service itself “establishes the link, or nexus” to service and also “confirm[s] the existence of the chronic disease while in service or [during a] presumptive period.” The provisions of subsection 3.303(b) for chronic diseases apply in this case and therefore the claim may be established with evidence of chronicity in service or a continuity of symptomatology after service. See Walker, 708 F.3d at 1338-1339. Thus, under the Court’s holding in Walker, the Board is now tasked with assessing whether the Veteran’s disability is supported by chronicity of symptomatology following discharge from service. For claims for service connection for hearing loss or impairment, VA has specifically defined what is meant by a disability for the purposes of service connection. Impaired hearing will be considered to be 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 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. However, the absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability, i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above, and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). 1. Entitlement to service connection for sensorineural bilateral hearing loss As an initial matter, the Veteran has a current diagnosis of bilateral sensorineural hearing loss for VA purposes, see January 2018 VA examination. 38 C.F.R. § 3.385. In addition, the Board observes that the Veteran’s DD-214 shows that he served as an aircraft mechanic; exposure to excessive noise is therefore conceded, thus satisfying the in-service injury element for service connection. Turning to the nexus requirement, the Board notes that the Veteran has credibly stated in his Notice of Disagreement that his current hearing loss has continued since service, and began when he was exposed to loud noises, to include air compressors used to start jet engines, while serving in the Marine Corps. The Board notes that a layperson is competent to report on the onset and continuity of his or her 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 the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence”). The Board finds that the Veteran is competent to report the onset and continuation of his hearing loss symptoms and the Board finds his statements credible, and therefore, probative. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); see also Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Addressing the Court’s Order in the JMR regarding the adequacy of the January 2019 VA examination, the Board observes that the previous Board decision was issued prior to the McCray decision. In McCray, the Court held that the 2006 Institute of Medicine (IOM) study contained contradictory findings, which calls into question any medical opinion that relies on it. In this case, the examiner did not address the qualifying and contradictory aspects of the Report in light of the military and medical history of the Veteran. As such, the Board assigns no probative value to the January 2019 VA examiner’s opinion. McCray v. Wilkie, 31 Vet. App. 243 (2019); see also Nieves-Rodriguez, 22 Vet. App. at 301 (explaining that a medical report without “a reasoned medical explanation” lacks probative value). Accordingly, as the probative evidence of record shows that the Veteran’s bilateral sensorineural hearing loss, a chronic disease, began in service and has continued since then, service connection is warranted. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); 38 C.F.R. § 3.303. 3.307, 3.309. 2. Entitlement to service connection for tinnitus Initially, the Board notes that the Veteran is competent to report recurrent tinnitus. Charles v. Principi, 16 Vet. App. 370 (2002). Thus, the first element of service connection has been established. As stated above, the in-service injury of excessive noise exposure has been conceded. Moreover, the Board finds the Veteran’s claim of in-service noise exposure and the onset of his tinnitus is competent and credible lay evidence of such exposure. Hence, the second element of service connection has been established. With respect to a nexus between the Veteran’s tinnitus and the in-service noise exposure, the Board notes that the January 2019 examiner provided a diagnosis of tinnitus and concluded that the Veteran’s tinnitus was not related to his military noise exposure as there was an absence of tinnitus in his service treatment records (STR) and, “the Veteran did not relate his tinnitus to anything specific in the military.” However, in the same examination report, the examiner wrote, “The Veteran served in the Marines from 1967 to 1971 as a ground support mechanic for aircraft.” The Agency of Original Jurisdiction (AOJ) recognized the inadequacy of that examination and requested an addendum opinion. The AOJ found that, “We’ve accepted the Veteran’s lay testimony as to having experienced occasional tinnitus while in service,” and asked for a nexus opinion that “operate[s] on the basis as if tinnitus had been documented in the STR.” Inexplicably, in the addendum opinion, the examiner found that “there is also no documented complaint of tinnitus in the veteran’s medical records; only his claim now that he noticed it then;” and provided another negative nexus opinion. The Board finds these opinions wholly inadequate prima facie, to include the examiner’s apparent disregard of the Veteran’s lay testimony without any foundation. See Layno Brown, 6 Vet. App. at 469 (a Veteran’s lay statements may be sufficient evidence in any claim for service connection). The Board affords the Veteran’s lay evidence regarding his symptomology of recurrent tinnitus significant probative weight. Accordingly, the Board finds that the probative evidence of record shows continuity of symptomatology of tinnitus. Thus, service connection for tinnitus is warranted. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); 38 C.F.R. § 3.303. 3.307, 3.309. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Nelson 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.