Citation Nr: 21068334 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 19-28 704 DATE: November 10, 2021 ORDER Entitlement to service connection for a bilateral hearing loss disability is granted. Entitlement to service connection for tinnitus is granted. INTRODUCTION The Veteran served on active duty from July 1959 to July 1963. In October 2021, the Veteran testified before the undersigned Veterans Law Judge at a virtual hearing. FINDINGS OF FACT 1. The Veteran's bilateral sensorineural hearing loss is etiologically related to his active service. 2. The Veteran's tinnitus is etiologically related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral hearing loss disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 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, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Because the Board is granting the Veteran's service connection claims for bilateral hearing loss and tinnitus, any error committed with respect to those claims is harmless. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis The Veteran seeks service connection for bilateral hearing loss and tinnitus, which he contends originated in service. Since the resolution of these claims involves the application of identical law to similar facts, in the interest of judicial economy these issues will be addressed together. The medical evidence confirms the Veteran currently has a bilateral hearing loss disability and tinnitus. The central issue that must be resolved at this time is whether the Veteran's current disabilities originated during service or are otherwise related to service. The Veteran's service treatment records (STRs) show his hearing was assessed by way of whispered voice testing on entrance and separation, which is not considered reliable by current standards. Though his STRs do not show a puretone threshold shift from entrance through separation, the RO conceded the Veteran's military occupational hazardous noise exposure by way of a June 2018 examination request. On VA examination in June 2018, the Veteran's puretone threshold testing revealed evidence of a current bilateral sensorineural hearing loss disability in accordance with 38 C.F.R. § 3.385. In addition, the examiner diagnosed the Veteran with tinnitus. However, the examiner concluded the Veteran's current hearing loss and tinnitus were not as likely as not caused by or the result of his military service. In this respect the examiner indicated the Veteran's January 1963 audiogram showed no hearing loss disability. Notwithstanding the medical opinion provided by the June 2018 VA examiner, the Veteran has reported he was exposed to significant noise exposure during his period of active duty, to include ship paint chipping and hull maintenance. Further, the Veteran has indicated that he initially noticed his diminished hearing and ringing in his ears during his time in the Navy, and that his hearing loss and ringing has continuously persisted since that time. Additionally, in September 2019 the Veteran's private board certified Otolaryngologist noted the Veteran's history of military noise exposure, and found his hearing loss and tinnitus disabilities to be more likely than not associated with the noise he endured therein. In this case, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The Board also notes that under certain circumstances, lay evidence may be sufficient to establish a nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay evidence has been found to be competent with regard to a disease that has "unique and readily identifiable features" that are "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007); see also Charles v. Principi, 16 Vet. App. 370, 374-75 (2002) (providing that a veteran's testimony regarding tinnitus is competent evidence, as "ringing in the ears is capable of lay observation."). Here, the Veteran has reported that he experienced diminished hearing and ringing of the ears in service, which has persisted ever since. The Board finds the Veteran competent to report his hearing limitations. It is generally within the competence of a lay person to identify and observe the effect of a disability under the ordinary conditions of daily life. Many symptoms are readily observable by a lay person. Accordingly, the lay evidence provided by the Veteran is unquestionably competent evidence. In this respect, the Board finds the Veteran's own reports of experiencing decreased hearing and ringing of the ears to be at least as probative as the above-noted VA examiner's findings. As previously noted, this appeal turns on whether there is a nexus between the Veteran's current disabilities and his exposure to acoustic trauma in service. The Veteran has competently and credibly reported that he experienced hearing loss and tinnitus during and since service due to the in-service acoustic trauma. Additionally, the Veteran has provided a letter from a board-certified auditory specialist, which concludes his hearing loss and tinnitus originated in service. Accordingly, a nexus to service is established. To the extent the June 2018 VA examiner opined that it was less likely as not that the Veteran's hearing loss and tinnitus were related to his military service, the Board finds this opinion to be of limited probative value as the opinion failed to address the Veteran's lay statements regarding the onset of his hearing loss. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). In sum, the Board is satisfied that the evidence supporting a nexus between the Veteran's currently diagnosed disabilities and his in-service acoustic trauma is at least in equipoise with the evidence against a nexus. Therefore, the Veteran is entitled to service connection for his bilateral hearing loss and tinnitus disabilities. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Fraser, 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.