Citation Nr: 21004178 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 17-24 839 DATE: January 26, 2021 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. FINDINGS OF FACT 1. The competent and probative evidence is at least in equipoise as to whether current bilateral hearing loss had its onset during or is otherwise related to the Veteran’s period of active service. 2. The competent and probative evidence is at least in equipoise as to whether current tinnitus had its onset during or is otherwise related to the Veteran’s period of active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1112, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1112, 5107(b); 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 from February 1970 to October 1971. This case is before the Board of Veterans’ Appeals (Board) on appeal from a March 2017 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the Veteran testified at a Board virtual tele-hearing. The transcript of the hearing has been associated with the record. The record demonstrates that the criteria for service connection for bilateral hearing loss and tinnitus are met. Service connection will be granted for a current disability that resulted from an injury, disease, or aggravation while in active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires (1) a present disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the present disability and the in-service incurrence or aggravation of a disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Veterans are competent to report observable symptoms in the realm of their personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The absence of treatment shown within service treatment records is an insufficient rationale for a negative nexus opinion. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed Cir. 2006). A medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Neither a VA medical examination report nor a private medical opinion is entitled to any weight in a service-connection or rating context if it contains only data and conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). A VA examiner’s failure to consider the veteran’s testimony when formulating his or her opinion renders that opinion inadequate. Miller v. Wilkie, 32 Vet. App. 249, 257 (2020). Certain chronic diseases, including sensorineural hearing loss and tinnitus, will be presumed related to service if they were shown as chronic in service; or if they manifested to a compensable degree within a presumptive period following separation from active duty; or if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In a claim of service connection for impaired hearing, demonstration of the existence of a current disability is subject to the additional requirements of 38 C.F.R. § 3.385, which provides that service connection for impaired hearing shall not be established until the hearing loss meets puretone or speech recognition criteria. Under this regulation, hearing status will be considered a disability for the purposes of service connection when the auditory thresholds in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies 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. A February 2017 VA examination demonstrates that the requisites for hearing loss for VA purposes have been met in both ears; accordingly, competent evidence of a current disability is found. See 02/08/2017, C&P Exam; 38 C.F.R. § 3.385. The Veteran contends that he experienced in-service acoustic trauma due to constant exposure to loud artillery noise and tanks, which, since service, resulted in a ringing noise in his ears and the need to ask people to repeat themselves. 12/02/2020, Hearing Transcript. The Veteran is found to have had exposure to acoustic trauma in service. The record demonstrates the Veteran underwent weapons training with the M16 rifle, and his military occupational specialty (MOS) as an auto mechanic in the Army had a high probability of hazardous noise exposure. Given the Veteran’s exposure to acoustic trauma, the requirement for evidence of in-service incurrence or aggravation of a disease or injury has been met. The Veteran’s hearing was noted as within normal limits during his October 1969 pre-induction examination; the puretone threshold average of the frequencies of 1000, 2000, and 4000 Hertz was 0 decibels bilaterally. The October 1969 examination did not clarify whether the American Standards Association (ASA) standards (typically used prior to 1969) or whether the current audiometry standard (the International Standard Organization/American National Standards Institute ISO/ANSI) was used. The August 1971 separation examination noted hearing within normal limits under the ASA standards, with puretone threshold average of 1.6 decibels in the right ear and 6.6 decibels in the left ear under the ASA standards and a puretone threshold average of 6.6 decibels in the right ear and 15 decibels in the left ear under the ISO/ANSI standards. See 12/29/2016, STR–Medical. Regardless of the standard used in the October 1969 examination, the August 1971 separation examination demonstrates a positive threshold shift in the left ear. A January 2010 VA treatment note indicates the Veteran denied tinnitus or a history of ear problems. 01/24/2017, CAPRI. The February 2017 VA examiner found the Veteran’s tinnitus less likely than not caused by or a result of military noise exposure based on the January 2010 treatment note and that no records were found that indicate any earlier complaint of tinnitus. The VA examiner also opined the Veteran’s bilateral hearing loss was not at least as likely than not caused by service. The examiner provided the rationale that hearing was normal upon separation with no positive threshold shifts observed compared to the entrance examination, and the present hearing loss is more likely a result of normal age-related changes. 02/08/2017, C&P Exam. In the December 2020 Board hearing, the Veteran explained that he tried to seek treatment right after he got out of service, but the VA Medical Centers were full of veterans returning from Vietnam. Every time he would try to seek treatment, the waitlist was so long, and the VA was so busy, he could not get in. As a result, he became discouraged and decided to accept his symptoms. See 12/02/2020, Hearing Transcript. The February 2017 VA examiner did not address the Veteran’s lay statement regarding hearing loss and tinnitus since service. See Miller, 32 Vet. App. at 257. The negative opinion regarding bilateral hearing loss was only based on the absence of treatment evidence within the service treatment records, and the examiner was incorrect in finding no positive threshold shift in the separation examination. See Stefl, 21 Vet. App. at 124; Buchanan, 451 F.3d at 1337. Therefore, the February 2017 negative opinion is afforded little probative value, as the rationale is flawed. The Board acknowledges the denial of tinnitus in the January 2010 VA treatment note; however, the term “tinnitus” is not colloquial, and the note does not clarify if the Veteran was asked if he experiences symptoms of ringing or buzzing in his ears. Reliance on this single treatment note to provide an opinion as to the etiology of tinnitus is flawed. Although no treatment records exist during the applicable presumptive period, the Board finds that the Veteran continued to experience the same symptoms since service. The Veteran is competent to report that he experienced symptoms of ringing in his ears and difficulty hearing others during that period but did not seek treatment because his local VA Medical Center was extremely busy, and he became discouraged and felt as though he could deal with his symptoms. His testimony is credible and entitled to probative weight, as they are internally consistent and consistent with other evidence of record, which shows that these symptoms of difficulty hearing others and ringing in his ears were attributable to the Veteran’s bilateral hearing loss and tinnitus. Considering the totality of the relevant evidence, the competent and probative evidence is at least in equipoise as to whether hearing loss and tinnitus were noted in service with post-service continuity of the same symptomatology. Inasmuch as the sole basis for the negative nexus opinion is the lack of medical documentation, it is reasonable to assume that had the examiner considered the Veteran’s lay statements, the examiner would have provided a positive nexus. Any doubt on the material issue of nexus is resolved in the Veteran’s favor, and the claim of service connection for bilateral hearing loss and tinnitus is granted. See 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a); see also Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013) (stating that the primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the “nexus” requirement of the three-element test, whereas the former benefits from presumptive service connection (absent intercurrent causes) or service connection via continuity of symptomatology). JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Costa, 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.