Citation Nr: 21074116 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 17-06 728 DATE: December 14, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for bilateral tinnitus is granted. FINDINGS OF FACT 1. Affording the Veteran the benefit of the doubt, his bilateral hearing loss symptoms began during his active service. 2. Affording the Veteran the benefit of the doubt, his bilateral tinnitus symptoms began during his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for bilateral tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1966 to April 1968. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran, his wife, and his daughter testified at a videoconference hearing before a Veterans Law Judge (VLJ). A transcript of that proceeding has been associated with the claims file. In a December 2019 decision, the Board denied the Veteran's claims for service connection. The Veteran appealed the Board's December 2019 decision. In November 2020, the Court of Appeals for Veterans' Claims (CAVC or Court) granted a Joint Motion for Remand (JMR) requesting a vacatur and remanding the Board's decision. after the issuance of the Court Order, in November 2020, the Veteran was notified that the VLJ who held his August 2019 hearing had retired and was offered the opportunity to appear for another hearing before the Board. In December 2020, the Veteran responded to this letter and requested another hearing before the Board. In September 2021, the Veteran, his wife, and his daughter testified at a virtual hearing before the undersigned VLJ. A transcript of that proceeding has been associated with the claims file. The November 2020 JMR and Court Order found that the prior Board decision failed to provide an adequate statement of reasons or bases for its findings and that the Veteran should be accorded another VA examination and opinion to assess his bilateral hearing loss and tinnitus disabilities. The Board is herein granting the Veteran's appeal in full. Accordingly, as he will not be prejudiced by proceeding on the merits, a remand to obtain further evidence is not necessary, and any deficiency in compliance with the Court Order is thus deemed to be harmless error. The Veteran has not raised any issues in the current appeal that are not discussed herein, nor have any other issues been reasonably raised by the record. Doucette v. Shulkin, 28 Vet. App. 366 (2017). Service Connection Service connection is granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence of: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as "chronic" in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). When all evidence is assembled, VA must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case the claim is denied. Gilbert v. Derwinski 1 Vet. App. 49 (1990). Bilateral Hearing Loss Sensorineural hearing loss is a "chronic disease" listed under 38 C.F.R. § 3.309(a). Thus, the presumptive service connection provisions of 38 C.F.R. § 3.303(b) apply in this portion of the appeal. Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. In the current appeal, the Veteran contends that he has bilateral hearing loss related to his military service, when he worked as heavy vehicle driver who hauled ammunition. He reports that he was exposed to noise from explosives, firearms, additional weapons fire, and rocket launchers. See January 2016 VA Examination and September 2021 Board Hearing Transcript. He describes bilateral hearing loss since service that has worsened in more recent years, and his statements are credible and consistent with his service. The Board acknowledges that service personnel records indicate that the Veteran's military occupational specialty (MOS) was that of a light vehicle driver. In any event, the Board finds that his competent testimony is consistent with, and certainly possible in light of, his documented MOS. Accordingly, the Board concludes that there has been continuity of bilateral hearing loss symptoms since service. 38 C.F.R. § 3.303(b). Multiple VA and private treatment records include audiological evaluations showing a bilateral hearing loss disability per 38 C.F.R. § 3.385. See September 2015 Private Audiological Evaluation (which shows hearing loss at 2000 Hertz, with 40 decibels in the right ear and 60 decibels in the left ear). No audiological testing was conducted as part of the Veteran's January 2016 VA examination because he was not evaluated in person. The Board does note that the VA and private treatment records documenting a hearing loss disability do not indicate whether the Maryland CNC word list was used in obtaining his audiological acuity. However, the Board will afford him the benefit of the doubt that the proper testing was applied. Importantly, the VA and private treatment records continue to show auditory thresholds documenting a clear bilateral hearing loss disability. See, e.g., March 2016 and November 2018 Treatment Records. The January 2016 VA examination report included the Veteran's reports of military of noise exposure from explosives, firearms, and rocket launchers. The examiner opined that it was less likely than not that the Veteran's hearing loss was due to, or caused by, his military service because his hearing thresholds were within normal limits at the time of his entrance and separation from service. The examiner noted that two pre-enlistment examinations from January 1965 and October 1965 yielded differing audiological findings, but that the possible hearing loss in the Veteran's left ear noted on the October 1965 examination was not considered permanent because the separation testing showed normal hearing. The examiner did not address the Veteran's contentions regarding his in-service noise exposure and relied on the absence of a significant threshold shift and normal hearing at separation in providing the negative opinion. The September 2015 private audiological evaluation noted the Veteran's reports of longstanding bilateral hearing loss and his reports of exposure to explosives, firearms, and rocket launchers on a regular basis. The examiner, despite noting that it was impossible to determine how much of the Veteran's hearing loss was caused by his military service given the time elapsed, did opine that the Veteran's military noise exposure more than likely contributed to his bilateral hearing loss. Although the examiner did not opine using the "at least as likely as not" language, the Board finds the examiner's "more than likely" opinion to be favorable to the Veteran. During a March 2016 VA treatment visit, the Veteran reiterated his belief that his hearing loss began during his military service and has continued to the present. He provided similar reports of noise exposure as previously documented, and the Board again finds his reports regarding the nature and onset of his hearing loss disability are credible. Further evidence of his credible assertions includes an August 2006 private treatment record. At that time, he reported that his hearing had become more problematic in the last 6 to 9 months, but that he had previously been exposed to a lot of noise in the military and was now having more trouble with his hearing than he did previously. The Veteran provided consistent testimony about the worsening of his hearing loss in recent years in his two Board hearings while continuing to relate the onset of his hearing loss to his military service. The January 2016 negative nexus opinion is of little probative value, as the examiner failed to take the Veteran's lay statements about his noise exposure into account in providing an opinion. Instead, the examiner relied on the absence of documented hearing loss in service in providing a negative opinion. In this regard, the Board points out that the absence of a hearing loss disability in service is not in and of itself fatal to a claim for service connection for hearing loss. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Despite recording the Veteran's reports of noise exposure during service, the examiner did not accord his contentions any consideration in providing the requested opinion. Lay evidence, when credible, is competent to establish the presence of continuity of symptoms for a claimed disability during, and since, separation from active service. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). As the evidence of record in the current appeal reflects acoustic trauma in service as well as the Veteran's competent and credible assertions of the onset of bilateral hearing loss symptoms in service continuing to the present, the evidence is at least evenly balanced in showing that his current bilateral hearing loss onset during service. Thus, the Board resolves all reasonable doubt in his favor. As the evidence is in relative equipoise, the benefit-of-the-doubt rule applies, and entitlement to service connection for bilateral hearing loss is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Bilateral Tinnitus Tinnitus is a type of disorder associated with symptoms that are uniquely capable of lay observation. Charles v. Principi, 16 Vet. App. 370 (2002). The primary role of the Board in adjudicating a tinnitus claim is to assess the credibility of the veteran's statements. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In the current appeal, the Veteran contends that he has tinnitus as a result of his military service, when he was exposed to noise from explosives, firearms, and rocket launchers while serving as a truck driver. As noted earlier herein, the Veteran was exposed to acoustic trauma during service, and in-service noise exposure is therefore conceded. He reports experiencing ringing in his ears after explosions or being near large, loud equipment during service and that this ringing has continued to the present and has worsened in recent years. The Board finds that the Veteran's statements as to the onset, and continuity, of his tinnitus are credible and that his statements alone are sufficient to establish the criteria for service connection for tinnitus. In reaching this conclusion, the Board acknowledges that the January 2016 VA audiological examiner could not provide a medical opinion without resorting to speculation. The examiner noted the Veteran's reports of bilateral tinnitus beginning in, and continuing since, service but indicated that it would be mere speculation to conclude that his current tinnitus is the result of his military noise exposure. The probative value of the examiner's opinion is undermined by the Veteran's statements and the other medical evidence of record. The September 2015 private evaluation discussed above documented the Veteran's military noise exposure and his bilateral tinnitus symptoms beginning in service and continuing to the present. Indeed, the examiner indicated it was "more than likely" that the Veteran's military noise exposure contributed to his bilateral tinnitus. Tinnitus symptoms are uniquely capable of lay observation. In the current appeal, the Veteran's lay statements as to when he experienced the onset of tinnitus symptoms are clearly more probative than the opinion of a medical examiner attempting to determine speculatively what the Veteran would have personally experienced decades ago. The probative evidence supports this claim. Service connection for bilateral tinnitus is granted. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Goreham 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.