Citation Nr: 21072053 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 18-20 107 DATE: December 2, 2021 ORDER Service connection for bilateral hearing loss is granted. Service connection for recurrent tinnitus is granted. FINDING OF FACT The probative evidence demonstrates that the Veteran's bilateral hearing loss and recurrent tinnitus were incurred during active service. CONCLUSIONS OF LAW 1. Resolving all doubt in the Veteran's favor, the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2020). 2. Resolving all doubt in the Veteran's favor, the criteria for service connection for recurrent tinnitus have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran, who is the appellant in this case, served on active duty from May 1969 to May 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2017 decision of a Department of Veterans' Affairs (VA) regional office. In September 2021, the Veteran testified during a virtual Board hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical 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) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Sensorineural hearing loss and tinnitus (as organic diseases of the nervous system) are considered a "chronic disease" under 38 C.F.R. § 3.309(a). Where there is evidence of acoustic trauma, tinnitus is considered a "chronic disease" under 38 C.F.R. § 3.309(a) for presumptive service connection purposes. See Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015) (holding that where there is evidence of acoustic trauma, the presumptive provisions of 38 C.F.R. § 3.309(a) include tinnitus as an organic disease of the nervous system). The presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b), and manifestation to a degree of 10 percent within one year under 38 C.F.R. § 3.307 apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Where a veteran served ninety days or more of active service, and certain chronic diseases, such as sensorineural hearing loss and tinnitus (as organic diseases of the nervous system), become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Generally, the degree of probative value which may be attributed to a medical opinion of record takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Also significant is whether the examiner had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant 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(b); 38 C.F.R. § 3.102. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Bilateral Hearing Loss and Tinnitus The Veteran asserts that his currently diagnosed hearing loss and tinnitus was caused by acoustic trauma in service, specifically noise from military firearms. See Notice of Disagreement received June 5, 2017. He claims that his hearing loss and tinnitus started during service and have continued since. See Board hearing transcript dated September 1, 2021 (Hearing Transcript) at pgs. 3, 5. For purposes of applying VA laws, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz 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 Board finds that the Veteran is currently diagnosed with a bilateral hearing loss disability as defined under 38 C.F.R. § 3.385, and recurrent tinnitus, as shown by VA examinations in 2017 and 2018. See VA examination report dated April 19, 2017 at pgs. 3-5; VA examination report dated February 21, 2018 at pgs. 1-3. The Veteran's service treatment records (STRs) show that his hearing was tested during his May 1969 induction examination and March 1971 separation examination using an audiometer. Both tests indicate normal hearing. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (holding that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss). The Veteran's Military Occupation Specialty (MOS) during his active duty service was Light Weapons Infantryman, which has been determined by the Department of Defense to involve a high probability of hazardous noise exposure. See VA Fast Letter 10-35 (September 2, 2010) (discussing the Duty MOS Noise Exposure Listing). Further, the Veteran's service records demonstrate that he qualified as a Grenadier and in use of the M-60 machine gun, and M-16 and M-14 rifles, and earned commendations for Marksman with the M-60 and M-14, and Sharpshooter with the M-16. See DD Form 214; DA Form 20 (Sections 29 and 41). During the September 2021 Board hearing, the Veteran testified that his duties included firing M-60 machine guns and 90 mm recoilless rifles, "with absolutely no hearing protection at all." Hearing Transcript at pg. 5. He added, "I think from being a gunner on the 90 recoilless rifle, where you're laying down and shooting a 90 recoilless rifle your ear is within two inches of a three-inch shell that's in it that's going off, and I just think those kind of blasts of is what's caused my hearing problems." Id. at pg. 5. He said ringing in his ears dates from service. Id. at pg. 6. A veteran, as a layperson, may be competent to testify on a variety of matters concerning the nature and cause of disability. Jandreau v. Shinseki, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Additionally, he is without a doubt competent to report that he was exposed to acoustic trauma, such as noise from weapons, during service. See generally Charles v. Principi, 16 Vet. App. 370, 374 (2002). Here, the Board finds the Veteran's testimony to be competent as well as credible considering the nature of his service. Accordingly, the Board finds that the Veteran's competent lay accounts of his duties in service and exposure to acoustic trauma are consistent with the circumstances, conditions, and hardships of his service and are, therefore, credible. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board also finds that although the Veteran's STRs do not specifically indicate exposure to acoustic trauma, and the record does not otherwise reflect that the Veteran had any permanent hearing loss or tinnitus complaints, treatments, or diagnoses during his active service, the Veteran was exposed to in-service hazardous noise resulting in acoustic trauma to his ears; accordingly, an in-service event is established. Therefore, the dispositive issue is whether there is a nexus between the current hearing loss and tinnitus and the in-service acoustic trauma. In April 2017, the Veteran underwent a VA hearing loss and tinnitus examination. The examiner confirmed a diagnosis of bilateral sensorineural hearing loss and recurrent tinnitus. The examiner opined that the Veteran's bilateral hearing loss is less likely than not related to service, explaining that the STRs reflected no decrease in hearing acuity during service and he has been out of the service over 40 years. Regarding the Veteran's tinnitus, the examiner opined that because the symptoms did not onset in 2007, it is less likely than the disorder is related to service. See VA Hearing Loss and Tinnitus examination report dated April 19, 2017. However, while the examiner noted that the Veteran "shot with [his] right hand" there is no other discussion of his prolonged use of firearms and anti-tank weapons during service. Moreover, the examiner indicated elsewhere in the April 2017 examination report that the Veteran's tinnitus onset gradually and became noticeable by 2013. No explanation as to the 2007/2013 discrepancy was provided. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from its being factually accurate, fully articulated, and having a sound reasoning for the conclusion). See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based upon an inaccurate factual premise has no probative value). For these reasons, the Board finds the April 2017 opinion inadequate to decide the claim and ultimately of little to no probative value. In February 2018, the Veteran underwent a second VA hearing loss and tinnitus examination. The examiner confirmed a diagnosis of bilateral sensorineural hearing loss and recurrent tinnitus. The examiner opined that the Veteran's bilateral hearing loss is less likely than not related to service, explaining that "there is no clinically significant difference" between the induction audiogram in May 1969 and the separation audiogram in March 1971. Regarding the Veteran's tinnitus, the examiner opined that "noise-induced tinnitus in the absence of noise-induced hearing loss is not supported by medical research. The records show no evidence of noise-induced hearing loss during active service." See VA Hearing Loss and Tinnitus examination report dated February 21, 2018. However, the absence of evidence in the Veteran's service treatment records, alone, may not serve as the basis for a negative opinion as to direct service connection. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Moreover, the examiner's rationale is based, in part, on general research and does not discuss any facts pertaining to the Veteran's hearing loss or individual circumstances, including risk factors, such as in-service acoustic trauma. Bailey v. O'Rourke, 30 Vet. App. 54, 60 (2018) (a medical opinion based solely on general medical literature without discussion of the veteran's individual circumstances is inadequate). For these reasons, the Board finds the February 2018 opinion inadequate to decide the claim and ultimately of little to no probative value. Notwithstanding the lack of a probative nexus opinion, the Board has duly considered the Veteran's lay statements of symptoms since service. The Veteran has indicated that he started noticing that he was having a harder time hearing during service and that symptoms of tinnitus were present during and since his separation from service. The Board has no reason to doubt the credibility of the Veteran's lay reports. Although a lay person (including a lay adjudicator) is not always competent to relate past symptoms to a current diagnosis, in this case it is within the competence of the lay veteran and the lay adjudicator to reach that conclusion based upon the overall factual picture including the length of time and the observable nature of the hearing loss and tinnitus symptoms. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring) (noting that "any given medical issue is either simple enough to be within the realm of common knowledge for lay claimants and adjudicators or complex enough to require an expert opinion"). Accordingly, the Board finds that the Veteran's credible testimony of his in-service noise exposure and the continuity of symptomatology since separation from service warrant service connection for bilateral hearing loss and recurrent tinnitus on a presumptive basis showing "continuous" post-service symptoms. 38 C.F.R. § 3.303(b). In summary, the Board resolves any reasonable doubt in the Veteran's favor to find that symptoms of bilateral hearing loss and recurrent tinnitus have been continuous since service separation so as to meet the criteria for presumptive connection based on "continuous" post-service symptoms. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Farrell, 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.