Citation Nr: 21062091 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 16-59 999 DATE: October 6, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. Currently diagnosed bilateral hearing loss is related to military service. 2. Currently diagnosed tinnitus is related to military service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1154, 5107(b); 38 C.F.R. §§ 3.303, 3.304(d), 3.385. 2. The criteria for service connection for bilateral tinnitus are met. 38 U.S.C. §§ 1110, 1154, 5107(b); 38 C.F.R. §§ 3.303, 3.304(d), 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from June 1969 to December 1974 and from December 1975 to April 1976. This case is before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision of the agency of original jurisdiction (AOJ) of the United States Department of Veterans Affairs (VA) denying entitlement to service connection for bilateral hearing loss and tinnitus. The Veteran testified in September 2019 at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the record. The matter has previously been before the Board, most recently in June 2021. In a June 2021 remand, the Board directed the examiner to provide an addendum opinion that considered the effects of Veteran's in-service head injury on his bilateral hearing loss and tinnitus. Service connection is awarded for disability that is the result of a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. 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. Shedden v. Principi, 381 F. 3d 1163 (Fed. Cir. 2004). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability that are subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Some chronic diseases, including organic diseases of the nervous system like sensorineural hearing loss, may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The applicable presumptive period is one year from separation. In adjudicating a claim, the competence and credibility of the Veteran must be considered. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). Competent lay evidence is any evidence not requiring that the person giving the evidence have specialized education, training, or experience. 38 C.F.R. § 3.159 (a)(2). When assessing the probative value of a medical opinion, the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Medical evidence establishes a current bilateral hearing loss disability for VA purposes under 38 C.F.R. § 3.385 and a tinnitus disability. The Veteran contends that his bilateral hearing loss and tinnitus were the result of his in-service noise exposure and head injury. At his September 2019 hearing, the Veteran testified that he started experiencing tinnitus in-service and his symptoms worsened post-service. The Veteran also testified that he was repeatedly subjected to loud noises and had inadequate protective gear while performing his duties as a pilot in-service. The Veteran's wife submitted a statement that her husband has trouble hearing her and other noises that she can hear. The Veteran's military occupational specialty (MOS) was basic pilot which has a high probability of noise exposure. The Board finds that the Veteran's statements regarding his in-service noise exposure is consistent with the circumstances of his service and concedes noise exposure during service. The Veteran's service treatment records (STRs) indicate that the Veteran suffered a head injury. The Veteran's entrance and separations exams show no abnormal hearing findings. The Board notes that the record contains four VA hearing loss and tinnitus opinions - June 2016, February 2020, March 2021, and June 2021. Each opinion is inadequate because the possible effects of the Veteran's conceded in-service noise exposure and/or his in-service head injury were not addressed, as was required by the Board in its remand instructions. Additionally, the examiners failed to properly consider the Veteran's statement of in-service occurrence of tinnitus. In light of the multiple prior remands to correct the same deficiencies, the Board determines that further remand would be futile, and will decide the claim on the current record, applying the doctrine of reasonable doubt. 38 C.F.R. § 3.102 The Veteran is qualified to report diminished hearing loss during active service, gradual decrease in hearing acuity since then, and onset of a ringing in his ears in active service with constant ringing in his ears since then. The Veteran's competent and credible statements regarding noise exposure in service, onset of his tinnitus in service, his MOS, and the diagnosis of sensorineural hearing loss and tinnitus weigh in favor of service connection. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Therefore, resolving all reasonable doubt in favor of the Veteran, service connection for bilateral hearing loss and tinnitus is warranted. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lauren Barletta 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.