Citation Nr: 21064500 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 19-25 411 DATE: October 20, 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 has experienced hearing loss related to his in-service military noise exposure since his separation from service. 2. The Veteran has experienced ringing in his ears related to his in-service military noise exposure since his separation from service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral sensorineural hearing loss are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1112, 1113, 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 Navy from August 1959 to August 1963. In October 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Virtual Hearing. A transcript of that proceeding will be associated with the file in the due course of business. SERVICE CONNECTION 1. Entitlement to service connection for bilateral sensorineural hearing loss 2. Entitlement to service connection for tinnitus The Veteran asserts that service connection is warranted, as his hearing loss and tinnitus began in-service as a result of his exposure to excessive noise and has continued ever since then. The Board agrees. 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). Service connection for certain chronic diseases may be established on a presumptive basis. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307; 3.309(a). The chronic diseases listed in 38 C.F.R. § 3.309(a) includes sensorineural hearing loss and tinnitus. 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; 38 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." Id. 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. Of note, 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). As an initial matter, the Veteran has diagnoses of bilateral sensorineural hearing loss and tinnitus, as reported in the April 2018 VA examination. The Board observes that the Veteran's military occupational specialty (MOS) is noted as radar maintenance technician and that he maintained airborne controller equipment. Thus, the evidence of record shows that the Veteran was consistently exposed to aircraft engine noise and exposure to excessive military noise exposure is conceded. See also lay statement from squadron mate who witnessed the Veteran's exposure to "reciprocating engine noise on frequent occasions." Accordingly, the in-service injury is established. Turning to the nexus requirement, the Board finds the Veteran's testimony that his hearing loss and ringing in his ears started while he was serving in the Navy and has continued, getting worse, ever since, is competent and credible evidence. See Layno v. Brown, 6 Vet. App. 465 (1994) (A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes through the senses.) In addition, two of the Veteran's instructor pilots submitted lay evidence reporting that they had noticed the Veteran's difficulty hearing the air traffic controller as early as 1969. The Board notes that in Buchanan v. Nicholson, 451 F.3d at 1335 (Fed. Cir. 2007), the Court held that nothing in the regulatory or statutory provisions relating to the evidence to be considered requires both medical and competent lay evidence; rather, competent lay evidence can be sufficient in and of itself. Accordingly, the Board finds that the nexus between the Veteran's in-service injury due to his repeated exposure to excessive military noise and his current hearing loss and tinnitus is established. The Board notes that the April 2018 VA examiner opined that the Veteran's current bilateral hearing loss and tinnitus were not related to his military service; however, the Board finds that the VA examiner's opinion is not sufficient for adjudication purposes. Although the examiner noted that the Veteran's MOS showed a moderate likelihood of evidence of acoustic trauma, she concluded that, "one cannot assume that exposure to hazardous noise will automatically result in acoustic trauma," without explaining why this Veteran's exposure to hazardous noise did or did not result in acoustic trauma. She then stated that the Veteran's separation examination audiological results did not show a "positive permanent shift in auditory thresholds." As there were no reported audiological results in the Veteran's entrance examination in August 1959, the Board is at a loss as to how the examiner determined that there was no threshold shift. This is especially so in light of the converted results, provided in the VA examination, showing the Veteran's hearing at 20 or 25 decibels at the relevant Hertz values on the separation physical examination. For an opinion to be adequate, it must include consideration of the Veteran's statements, be based on accurate factual premises, and contain a rationale sufficient to support its conclusions. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise); see also Nieves-Rodriguez v. Peake, Vet. App. 295 (2008) (explaining that a medical report without "a reasoned medical explanation" lacks probative value). Here, the Board finds that the examiner's negative nexus opinions regarding the Veteran' hearing loss and tinnitus do not contain a sufficient rationale to support the conclusions. Therefore, the Board affords these negative nexus opinions no probative value. In sum, the Board finds that the probative evidence of record shows that the elements for service connection for bilateral sensorineural hearing loss and service connection for tinnitus, chronic diseases, have been met. Accordingly, service connection is warranted. 38 C.F.R. § 3.303, 3.307, 3.309, Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 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.