Citation Nr: 21072259 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 19-15 879 DATE: December 2, 2021 ISSUES 1. Entitlement to service connection for bilateral hearing loss (BHL). 2. Entitlement to service connection for tinnitus. ORDER Entitlement to service connection for BHL is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran's current BHL is etiologically related to service. 2. The Veteran's current tinnitus is etiologically related to service. CONCLUSIONS OF LAW 1. BHL was incurred in active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. Tinnitus was incurred in active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1966 to August 1968. This case comes before the Board of Veterans' Appeals (Board) from a January 2019 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In light of the favorable determination contained herein, further development with regard to VA's duties to notify and assist as set forth by the Veterans Claims Assistance Act of 2000 (VCAA) would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540 (1991). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Service Connection Legal Criteria and Analysis Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). In order to establish service connection for the claimed disorder, there must be (1) competent 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) competent evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Impaired hearing will be considered a disability when: (1) the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; (2) the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or (3) speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is from 0 to 20 decibels, with higher threshold levels indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). The disease must have manifested to a degree of 10 percent or more within one year of separation from service. 38 C.F.R. § 3.307 (a)(3). If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (2013). VA is required to give due consideration to all pertinent competent medical and lay evidence. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In determining whether service connection is warranted for a disability, VA is responsible for determining 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. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. BHL As to the first prong of Hickson, a current diagnosis, VA examination shows that in accordance with 38 C.F.R. § 3.385, the Veteran does have a current BHL disability for VA compensation purposes. Turning to the second prong of Hickson, an in-service incurrence of a disease or injury, the Veteran's DD Form 214 shows that he served in the Field Artillery and received the Sharpshooter Badge, M-14 Rifle. Service personnel records show that the Veteran's duties include being a cannoneer, assistant gunner, and gunner. Accordingly, Hickson element (2) is met. The Veteran was afforded a VA-contracted examination in December 2018 in which the examiner noted that his duties in service had a high probability for hazardous noise exposure. However, the examiner opined that he had normal hearing results on separation; therefore, it was less likely than not that the hearing loss was a result of military service. The Board notes that regulations do not preclude service connection for current hearing loss which first met VA's definition of disability after service. 38 C.F.R. § 3.385 (2017); Hensley v. Brown, 5 Vet. App. 155 (1993); Ledford v. Derwinski, 3 Vet. App. 87 (1992) (lack of documented hearing loss while in service is not fatal to a claim for service connection.). As the December 2018 opinion was based on the lack of hearing loss noted on the Veteran's separation examination, it is afforded little probative value. The Veteran submitted a private audiological evaluation in March 2019 in which the examiner stated that he was often exposed to loud firearms and artillery noise, particularly while serving in Vietnam. The examiner opined that the Veteran's hearing loss was likely due to his miliary experience, particularly his exposure to loud firearm and artillery noise. The Board notes that greater weight may be placed on one physician's opinion than another's depending on factors such as the reasoning employed by the physicians. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Additionally, while the findings of a physician are medical conclusions that the Board cannot ignore or disregard, Willis v. Derwinski, 1 Vet. App. 66 (1991); the Board is free to assess medical evidence and is not obligated to accept a physician's opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). Although the examiner qualified his opinion in somewhat speculative terms, there is no evidence that attributes the Veteran's BHL to any other cause. See Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (noting that medical reports "must be read as a whole"). The Board finds that the private examiner in March 2019 provided a positive nexus opinion relating the Veteran's BHL to service. That is, the examiner found that BHL was related to the Veteran's military duties and related noise exposure in service. Based upon the foregoing supportive evidence and resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran's BHL is related to active service, and service connection is warranted. Tinnitus VA examination shows a diagnosis of tinnitus. Accordingly, Hickson element (1) is met. Turning to the second prong of Hickson, an in-service incurrence of a disease or injury, the Veteran's DD Form 214 shows that he served in the Field Artillery and received the Sharpshooter Badge, M-14 Rifle. Service personnel records show that the Veteran's duties include being a cannoneer, assistant gunner, and gunner. Accordingly, Hickson element (2) is met. The Veteran was afforded a VA-contracted examination in December 2018 in which the examiner stated that he reported that the tinnitus started about 10 years prior. The examiner stated that given the reported onset of 10 years prior, it was less likely than not that the tinnitus was a result of military noise exposure. However, the Board notes that in prior correspondence within his October 2018 application for benefits, the Veteran stated that his tinnitus began in July 1968 during service. As such, the December 2018 opinion is based on an inaccurate factual basis. See Reonal v. Brown, 5 Vet. App. 458,461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). The Veteran submitted a private audiological evaluation in March 2019 in which the examiner stated that he was often exposed to loud firearms and artillery noise, particularly while serving in Vietnam. The examiner stated that the Veteran's tinnitus was likely due to his miliary experience, particularly his exposure to loud firearm and artillery noise. Tinnitus is a chronic disease listed under 38 C.F.R. § 3.309 (a) (2017); therefore, the provisions of 38 C.F.R. § 3.303 (b) (2016) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). 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. With a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to inter-current causes. 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. 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). The Board notes that greater weight may be placed on one physician's opinion than another's depending on factors such as the reasoning employed by the physicians. Gabrielson, 7 Vet. App. 36, 40. Additionally, while the findings of a physician are medical conclusions that the Board cannot ignore or disregard, Willis, 1 Vet. App. 66; the Board is free to assess medical evidence and is not obligated to accept a physician's opinion. Wilson, 2 Vet. App. 614. After considering the entirety of the evidence of record, the Board finds the opinion from the March 2019 private examiner to be the most probative. The private examiner's opinions were based upon examination/interview of the Veteran, review of the service treatment and post-service records, and are well-supported and consistent with the documented record, to include the Veteran's credible assertions. Thus, with respect to Hickson element (3), recognizing that this is a chronic disease as discussed above, and resolving reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for tinnitus. J. TUNIS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M.K., 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.