Citation Nr: 21063767 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 17-37 458 DATE: October 15, 2021 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his current bilateral hearing loss is etiologically related to his active service. 2. Resolving reasonable doubt in the Veteran's favor, his tinnitus is etiologically related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 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, 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 from February 1969 to December 1970, with service in the Republic of Vietnam. During the current appeal, and specifically in March 2019, the Board of Veterans Appeals (Board) remanded this appeal for further evidentiary development. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 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). Additionally, service connection can also be established through application of a statutory presumption for chronic diseases, including organic diseases of the nervous system, such as bilateral hearing loss and tinnitus, when manifested to a compensable degree within a year of separation from service. 38 C.F.R. §§ 3.307, 3.309. If a chronic disease is not manifested to a compensable degree within a year of separation of service, then, generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Furthermore, a layperson is competent to report on the onset and continuity of his or her current symptomatology. 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). Bilateral Hearing Loss The Veteran seeks service connection for bilateral hearing loss, for which he has a current undisputed diagnosis sufficient for VA compensation purposes. See 38 C.F.R. § 3.385 (stipulating that, for the purpose of applying the laws administered by VA, impaired hearing is considered a "disability" when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the above frequencies are 26 decibels or higher; or when speech recognition scores using the Maryland CNC Test are less than 94 percent). See also February 2017 VA audiological examination. In a March 2017 Notice of Disagreement (NOD), the Veteran reported that his bilateral hearing loss began during service and has continued since then. He stated that, during his time in Vietnam, he was exposed to several different levels of noise trauma, including artillery battery, helicopters, and vehicles including tanks. Further, his Military Occupational Specialty (MOS) was that of a mechanic maintenance apprentice which has a high probability of exposure to hazardous noise. These military responsibilities are consistent with the Veteran's lay statements regarding his in-service noise exposure. Thus, the Board concedes his in-service noise exposure. As such, the current disability and in-service event elements of this claim have been met, and the only issue remaining is whether a causal relationship, or nexus, exists between the Veteran's current bilateral hearing loss and his active service. As reasonable doubt is to be resolved in the Veteran's favor, the Board finds that such a nexus has been shown in this case. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board acknowledges that, in an October 2019 VA addendum opinion, the examiner opined that it is less likely than not that the Veteran's bilateral hearing loss is related to his active service, to include in-service noise exposure. While the Board cannot ignore or disregard the VA examiner's medical conclusions, the Board is free to assess medical evidence and is not compelled to accept a medical opinion. See Willis v. Derwinski, 1 Vet. App. 66 (1991); Wilson v. Derwinski, 2 Vet. App. 614 (1992). In particular, the examiner's opinion is based on the Veteran's hearing audiogram from his separation examination, which did not show a significant threshold shift, and the lack of complaints of hearing loss in his service treatment records. The examiner failed to address the Veteran's competent and credible assertions that his hearing loss began during service and continued since then. An examination is inadequate if the medical professional fails to consider a veteran's own lay reports of symptoms. Miller v. Wilkie, 32 Vet. App. 249, 257 (2020). Thus, the Board finds this VA opinion to be inadequate and affords it little, if any, probative value. In light of the above, the evidence is at least in equipoise as to whether the Veteran's current bilateral hearing loss began in service, to include as a result of his in-service noise exposure. Resolving any reasonable doubt in the Veteran's favor, the Board finds that his bilateral hearing loss is at least as likely as not related to his in-service noise exposure. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 49. Thus, service connection for bilateral hearing loss is granted. Tinnitus The Veteran also seeks service connection for tinnitus. In a March 2017 NOD, he reported that his tinnitus began during service and has continued since then. Further, his in-service noise exposure has been conceded. Tinnitus is a type of disorder associated with symptoms that are uniquely capable of lay observation. Charles v. Principi, 16 Vet. App. 370 (2002). The primary role of the Board in adjudicating the tinnitus claim is to assess the credibility of the Veteran's statements. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In an October 2019 VA addendum opinion, the examiner opined that the Veteran's tinnitus was less likely than not related to his active service, including his in service noise exposure. As previously noted herein, the Board finds this opinion to be inadequate as it failed to address the Veteran's lay statements regarding the onset of his symptoms. Regarding the Veteran's tinnitus, the negative nexus opinion was based on the determination that, because the Veteran's hearing loss was not related to service, then his tinnitus could not be either. This is factually inaccurate, as a person can have tinnitus without hearing loss and vice versa. The Board finds the Veteran's statements as to the onset of his tinnitus credible. His statements alone are sufficient to establish the criteria for service connection for tinnitus. While there is no objective evidence of tinnitus in service, the Veteran asserts that he developed tinnitus in service and has had tinnitus since then. As noted above, he is competent to give evidence about observable symptoms such as tinnitus and noise exposure. Layno, 6 Vet. App. at 465. As discussed above, the Board has conceded his noise exposure during his active duty. Thus, the in-service event element of his claim for service connection for tinnitus is met. Resolving any reasonable doubt in the Veteran's favor, the Board finds that his tinnitus is at least as likely as not related to his in-service noise exposure. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 49. Therefore, service connection for tinnitus is granted. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Benson, 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.