Citation Nr: 21069638 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 17-08 836 DATE: November 19, 2021 ORDER Service connection for tinnitus is granted. Service connection for bilateral hearing loss is granted. FINDINGS OF FACT 1. The evidence is at least in equipoise that the Veteran's tinnitus began during service and has continued since that time. 2. The evidence is at least in equipoise that the Veteran has experienced bilateral hearing loss from in-service noise exposure and has a current hearing loss disability for VA purposes. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.309. 2. The criteria for entitlement to service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1112, 1113, 1131, 1154(b), 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a), 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Navy from February 1978 to January 1981. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a virtual videoconference Board hearing in August 2021; a transcript is of record. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must generally be 1) evidence of a current disability; 2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and 3) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability, which is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused or aggravated by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 43, 448-49 (1995). Service connection for certain diseases may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). A nexus between a current disability and an in-service injury or event may be established by evidence of continuity of symptomatology, if the condition is a chronic disease enumerated under 38 U.S.C. § 1101. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Bilateral hearing loss and tinnitus (organic diseases of the nervous system) are a chronic disease. See 38 U.S.C. §§ 1101, 1112. In a claim of service connection for impaired hearing, demonstration of the first Shedden element, that is the existence of a current disability is subject to the additional requirements of § 3.385, which provides that service connection for impaired hearing shall not be established until the hearing loss meets pure tone and/or speech recognition criteria. Under this regulation, hearing status will be considered a disability for the purposes of service connection when the auditory thresholds in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies 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. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). 1. Entitlement to service connection for tinnitus. The Veteran contends he has tinnitus that is related to his time in service. The question for the Board is whether the Veteran has tinnitus that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran has a diagnosis of tinnitus that is related to his service. 38 U.S.C. §§ 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. The Veteran has a current diagnosis of tinnitus, to include as reported at the 2015 examination. His service treatment records show ear complaints and pain related to diving. He testified that he believes his disabilities are due to noise exposure during service his military occupational specialty was a boiler technician. The Board finds the Veteran competent and credible to describe his hearing impairments and when they began as such experiences are consistent with his MOS and accompanying duties. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The 2015 examiner provided a negative nexus opinion. The examiner stated the Veteran's service treatment records did not show complaints of tinnitus and therefore there was insufficient evidence to establish a nexus. The Board finds this opinion to have little probative value. In this regard, there is no discussion of the Veteran's in-service ear related problems or complaints. As such, the Board places little probative value on the opinion. An addendum was provided in February 2016. The examiner stated that there was objective evidence of no decreased hearing during service. The Board finds this opinion to have little probative value as the examiner did not sufficiently address the Veteran's service treatment records documenting ear problems. Additionally, the examiner relies on the lack of objective evidence to provide the negative nexus opinion. The Veteran provided a positive nexus opinion from August 2015. The audiologist provided a detailed history of the Veteran's service and noise exposure as well as ear pain. The examiner stated that based on the Veteran's history as well as research linking hearing loss and tinnitus to noise exposure, that it was at least as likely as not that his tinnitus was due to noise exposure in service. The Board finds this opinion to have some probative value. The examiner reported an accurate noise exposure history for the Veteran. However, the rationale is somewhat conclusory. As such, the Board finds it to have some probative value. After review of the competent and probative evidence, the Board finds that service connection for tinnitus is warranted. The material evidence regarding nexus is at least in equipoise. The Board acknowledges the negative VA opinions. Yet, there is also a positive private nexus opinion. Additionally, the Board has found the Veteran to be competent and credible to describe that his tinnitus began during active service. 38 C.F.R. §§ 3.102, 3.303(a); see Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (noting that the benefit of the doubt rule is a unique standard of proof, and "the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding such benefits"). As such, the Board finds that the evidence is at least in equipoise that the Veteran's current tinnitus is related to his noise exposure in service. Therefore, service connection for tinnitus is warranted. 2. Entitlement to service connection for bilateral hearing loss. The Veteran asserts service connection for bilateral hearing loss to include as due to in-service noise exposure. The question for the Board is whether the Veteran has a bilateral hearing loss disability for VA purposes that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes the Veteran has a current diagnosis of bilateral hearing loss for VA purposes, and the evidence is at least in equipoise that he has had hearing loss due to noise exposure in service. 38 U.S.C. §§ 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303. The Veteran has a current diagnosis of bilateral hearing loss for VA purposes as reported at the 2015 examination. As such, the first element of service connection is met. His service treatment records show ear complaints and pain related to diving. He testified that he believes his disabilities are due to noise exposure during service his military occupational specialty was a boiler technician. The Board finds the Veteran competent and credible to describe his hearing impairments and when they began as such experiences are consistent with his MOS and accompanying duties. Jandreau, 492 F.3d at 1377, 1377 n.4 (Fed. Cir. 2007). The 2015 examiner provided a negative nexus opinion. The examiner stated the Veteran reported his hearing problems began approximately five years ago. He did not have threshold shifts for his exit examination. Therefore, the examiner found his hearing loss was less likely than not a continuation of hearing problems in service. The Board finds this opinion to have some probative value. The examiner adequately addressed whether his current hearing loss was a continuation of his in-service hearing problems. However, the examiner did not sufficiently address whether his current disability was due to noise exposure in service or other injures in service. An addendum was provided in February 2016. The examiner stated that there was objective evidence of no decreased hearing during service. The Board finds this opinion to have little probative value as the examiner did not sufficiently address the Veteran's service treatment records documenting ear problems. Additionally, the examiner relies on the lack of objective evidence to provide the negative nexus opinion. The Veteran provided a positive nexus opinion from August 2015. The audiologist provided a detailed history of the Veteran's service and noise exposure as well as ear pain. The examiner stated that based on the Veteran's history as well as research linking hearing loss and tinnitus to noise exposure, that it was at least as likely as not that his bilateral hearing loss was due to noise exposure in service. The Board finds this opinion to have some probative value. The examiner reported an accurate noise exposure history for the Veteran. However, the rationale is somewhat conclusory. As such, the Board finds it to have some probative value. After review of the competent and probative evidence, the Board finds the evidence is at least in equipoise that the Veteran's bilateral hearing loss for VA purposes is due to noise exposure in service. In this regard, the Board acknowledges the negative nexus opinions. However, for the reasons as reported above, the Board finds they are entitled to little probative value. The Veteran has testified that he has had ear problems and pain during service. As previously found, the Veteran is credible. Additionally, there is a positive private nexus opinion. As the positive and negative evidence of record have strengths and weakness, the Board finds that they balance out. 38 C.F.R. § 3.102; see Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (noting that the benefit of the doubt rule is a unique standard of proof, and "the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding such benefits"). As such, the Board finds the evidence is at least in equipoise that the Veteran's current bilateral hearing loss for VA purposes is due to noise exposure during active duty. Therefore, service connection for bilateral hearing loss is warranted. 38 C.F.R. § 3.102, 3.303. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Morales, 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.