Citation Nr: 21004536 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 16-25 224 DATE: January 27, 2021 ORDER Entitlement to service connection for bilateral hearing loss disability is granted. Entitlement to service connection for tinnitus is granted. FINDING OF FACT Bilateral hearing loss disability and tinnitus are related to acoustic trauma sustained in active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss disability have been met. 38 U.S.C. §§ 1110, 1112, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2019). 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1112, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran had active service from July 1968 to October 1969 in the United States Marine Corps (USMC), including service in the Republic of Vietnam. The Veteran’s awards and decorations for his active service include a Purple Heart Medal. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In January 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). Service Connection – Bilateral Hearing Loss Disability and Tinnitus The Veteran contends that his bilateral hearing loss disability and tinnitus are related to his in-service noise exposure. Additionally, through testimony provided at his January 2021 hearing and as described in the Veteran’s VA Form 9 and notice of disagreement, he maintains that his bilateral hearing loss disability and tinnitus began in service and have continued ever since. Initially, the Board notes that the Veteran’s military occupational specialty (MOS) as a rifleman in the USMC is subject to a high probability of acoustic trauma. Furthermore, the Board notes that the Veteran was engaged in combat, sustaining several injuries while serving in the Republic of Vietnam. As such, the Board concedes that the Veteran sustained acoustic trauma during active service. Service treatment records depict that upon enlistment, the Veteran had mild hearing loss in the right ear of 30 decibels at 4000 Hz, a reading which does not amount to a hearing loss disability for VA purposes and is therefore not considered a pre-existing disability. Service records are otherwise silent for any complaints or treatment of a hearing loss disability or tinnitus while in service. Regardless, the Veteran is competent to report that he first experienced decreased hearing acuity and tinnitus during active service, and that the symptoms have continued ever since. Moreover, the Board finds the Veteran credible in that regard. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). The Veteran was afforded a VA audiology evaluation in June 2014. Audiometric testing results at that time confirmed a diagnosis of tinnitus and bilateral hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. The examiner opined that the Veteran’s bilateral hearing loss disability and tinnitus were less likely than not caused by or the result of noise exposure during service. It was noted that the Veteran reported the onset of hearing loss symptoms in 1974 and tinnitus in 1984, a few years after his separation from service. Citing to supportive medical literature, the examiner found that the delayed onset of symptoms was evidence that the hearing loss disability and tinnitus were not related to the acoustic trauma experienced during active duty service. In March 2016, an addendum VA medical opinion was obtained to address whether medications used to treat the Veteran’s various service-connected disabilities aggravated the bilateral hearing loss disability and tinnitus. The examiner opined that it is less likely than not that the Veteran’s medications may have worsened the challenged disabilities beyond their natural course as there is no medical evidence of such a link. The Board finds the June 2014 and March 2016 VA medical opinions inadequate for adjudication purposes. In this regard, the examiner failed to consider the Veteran’s lay statements regarding the onset and continuity of his symptoms. As the opinions are inadequate, they cannot serve as the basis of a denial of entitlement to service connection. The Board notes the variance in the VA examiner’s recording regarding the date of onset of the Veteran’s symptoms and the Veteran’s own self-reporting of such. 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, (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. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Here, as noted above, the Veteran is competent to identify decreased hearing acuity and he has been found credible in that regard. In sum, the Board concedes that the Veteran sustained acoustic trauma during active service. He has competently and credibly reported that he first experienced decreased hearing acuity symptoms and tinnitus upon his separation from active service, and that his symptoms have continued since that time. The Veteran has a current diagnosis of bilateral hearing loss disability for VA purposes and tinnitus. The VA medical opinions of record against the claim are inadequate and so, of little probative value. Accordingly, the Board finds that the evidence for and against the claim is at least in equipoise. Therefore, the benefit of the doubt must be resolved in favor of the Veteran, and entitlement to service connection for bilateral hearing loss disability and tinnitus is warranted. 38 U.S.C. § 5107 (b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Sutherell, 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.