Citation Nr: 21072134 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 16-55 685 DATE: December 2, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus as secondary to service-connected bilateral hearing loss is granted. FINDINGS OF FACT 1. The most probative evidence of record establishes the Veteran's bilateral hearing loss is etiologically related to his active military service. 2. The most probative evidence of record establishes the Veteran's tinnitus is proximately due to his service-connected bilateral hearing loss. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. INTRODUCTION The Veteran served honorably on active duty in the United States Air Force during the Vietnam Era, from August 1968 to August 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2015 Rating Decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. In his November 2016 substantive appeal (VA Form 9), the Veteran elected to provide testimony to a Veterans Law Judge (VLJ) via live video conference hearing. However, after being properly notified of the time, date, and location of his hearing scheduled for August 2021, the Veteran failed to appear. As such, his hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Generally, service connection requires: (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. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004)). In certain cases, competent lay evidence may demonstrate the presence of any of these elements. See 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 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, 581 F.3d 1313. Additionally, service connection may be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Certain specifically enumerated disorders, including other organic diseases of the nervous system such as sensorineural hearing loss and tinnitus, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Fountain v. McDonald, 27 Vet. App. 258 (2015). The absence of in-service evidence of hearing loss is not fatal to a claim for service connection. See 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) 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. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Lay evidence can be competent and sufficient to establish a diagnosis when a layperson is: (1) competent to identify the medical condition; (2) reporting a contemporaneous medical diagnosis; or (3) describing symptoms at the time that support a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. See Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). Finally, the Board must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event; or, whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), see also 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Entitlement to service connection for bilateral hearing loss is granted. The Veteran asserts that service connection is warranted for bilateral hearing loss based upon his military occupational specialty (MOS) of machinist and in-service acoustic trauma involving exposure to aircraft, machinery, tools, and firearms all without hearing protection. The August 2015 Rating Decision found that, based upon puretone thresholds noted in an August 2015 VA examination, the Veteran does have a current hearing loss disability for VA purposes. However, the VA examiner opined that bilateral sensorineural hearing loss "is less likely as not ... caused by or a result of Veteran's military noise exposure." By way of rationale, the VA examiner notes the Veteran's service treatment records (STRs) "documented normal, stable auditory thresholds for both ears." According to the VA examiner, the opinion is "based on Veteran's current nature and configuration of hearing loss, conceded noise exposure through MOS, review of [STRs], medical treatment records, DD 214 report, clinical experience and expertise." The Board assigns limited probative weight to the VA examiner's rationale supporting her negative nexus opinion. First, the VA examiner relies almost exclusively upon the Veteran's STRs being silent for complaints or treatment for hearing loss. However, as previously noted, the absence of in-service evidence of hearing loss is not fatal to a claim for service connection. See Ledford, 3 Vet. App. at 89; Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Moreover, upon review of the STRs, threshold shifts are reflected between the June 1968 enlistment examination and April 1972 separation examination. As such, the VA examiner's opinion appears based upon an incorrect factual premise. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that a medical opinion that is not factually accurate, fully articulated, or based on sound reasoning is not probative). Further, the VA examiner's rationale is conclusory and fails to address the Veteran's statements regarding such factors as causation, symptomology, and symptom progression. See Dalton v. Peake, 21 Vet. App. 23 (2007) (noting that a medical opinion which does not consider the Veteran's reports of symptoms and history, even if recorded in the course of the examination, is inadequate). Finally, the examiner's opinion that the Veteran's "civilian occupational noise exposure ... use of a motorcycle and his recreational shooting/hunting cannot be ruled out as other possible causes of or contributing factors to his current hearing loss" is speculative in nature. In his July 2016 Notice of Disagreement (NOD), the Veteran states that, "I have had hearing loss [and] tinnitus for years since leaving the Air Force," during which he worked as an aircraft maintenance machinist "for four years." The Veteran reports in his November 2016 VA Form 9 that he was exposed to acoustic trauma including firearms and working as a maintenance machinist in the welding and sheet metal shops and on the flight line without hearing protection. According to the August 2015 VA audiological examination report, the Veteran's MOS of machinist carries a "moderate probability rating for hazardous noise exposure." In-service exposure to hazardous noise is conceded based upon the Veteran's MOS and his competent and credible reports. As such, this appeal turns on whether there is a nexus between the Veteran's current disability and his exposure to acoustic trauma in service. The Veteran is competent to report the onset and duration of symptoms of hearing loss and tinnitus because they require only personal knowledge, not medical expertise, as they come to him through his senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Further, and considering the circumstances, conditions, and hardships of the Veteran's service, as well as threshold shifts reported during military service, the Board finds his statements credible and entitled to probative weight in this matter. 38 C.F.R. § 3.304(d). In sum, the Board is satisfied that the evidence supporting a nexus between the Veteran's currently diagnosed bilateral hearing loss and his in-service acoustic trauma is at least in relative equipoise with the evidence against a nexus. Therefore, the Veteran is entitled to service connection for his bilateral hearing loss disability. Entitlement to service connection for tinnitus as secondary to service-connected bilateral hearing loss is granted. The Veteran contends his tinnitus is related to the noise exposure he experienced during active military service. Alternatively, the record has raised the theory that the Veteran's tinnitus is proximately due (i.e., secondary) to his service-connected bilateral hearing loss. 38 C.F.R. § 3.310(a). According to the VA examination report dated August 2015, the Veteran's "tinnitus is at least as likely as not ... a symptom associated with the hearing loss, as tinnitus is known to be a symptom associated with hearing loss." Considering the examination report as a whole and in the context of the record, the Board finds the VA examiner's conclusion provides probative value as it appears factually accurate, fully articulated, and having sound reasoning for the conclusion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Moreover, the opinion is not inconsistent with the other evidence of record and is consistent with the Veteran's reports that his bilateral hearing loss and tinnitus began at the same approximate time. In light of the grant of service connection for bilateral hearing loss, the evidence likewise supports a grant of service connection for tinnitus. As such, service connection for tinnitus is granted on a secondary basis. 38 C.F.R. § 3.310(a). T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Worsham, Attorney Advisor 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.