Citation Nr: 21075981 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 19-07 343 DATE: December 22, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, the evidence of record shows that the Veteran's bilateral hearing loss is at least as likely as not related to in-service noise exposure. 2. Resolving reasonable doubt in the Veteran's favor, the evidence of record shows that the Veteran's tinnitus is at least as likely as not related to in-service noise exposure. CONCLUSIONS OF LAW 1. The evidence is in relative equipoise as to whether the Veteran's bilateral hearing loss is related to active service. 38 U.S.C. §§ 1110, 1111, 1112, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The evidence is in relative equipoise as to whether the Veteran's tinnitus is related to active service. 38 U.S.C. §§ 1110, 1111, 1112, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1969 to July 1969. In December 2021, the Veteran testified before the undersigned at a virtual hearing. The transcript from the hearing has not yet been associated with the file, as the case is being granted under the Board's "One Touch" program. The hearing transcript will still be processed and associated with the claims file in the ordinary course of business. Service Connection Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection, generally, there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet. App. 341, 346 (1999). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr, supra, at 307; see also Davidson v. Shinseki, 581 F.3d 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). However, the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309 (a), such as organic diseases of the nervous system to include sensorineural hearing loss and tinnitus. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107 (b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Entitlement to service connection for bilateral hearing loss The Veteran contends that his current bilateral hearing loss is etiologically related to in-service noise exposure. The threshold for normal hearing is from zero to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels 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. The Court has held that service connection can be granted for hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service. Hensley, supra, at 159. The Veteran claims that he has bilateral hearing loss as a result of acoustic trauma during active duty. Specifically, the Veteran alleges that his bilateral hearing loss is a result of exposure to in service acoustic trauma while performing his duties as an army unit supply specialist. Initially, the Board notes that the Veteran has been diagnosed with bilateral hearing loss. See February 2018 VA audiological examination report. The Veteran reported spending time on firing range and being around light artillery. Exposure to loud noise during service is conceded based on the Veteran's military occupation specialty. See VA Form DD214. With evidence of a current disability and a conceded in-service event or injury, the remaining element required to establish service connection is a nexus between the current disability and the in-service event or injury. The Veteran was provided with a VA audiological examination in February 2018. The examiner found that the Veteran had sensorineural hearing loss bilaterally. The examiner found that in-service audiological testing showed hearing loss at the 4000 Hz level. Nevertheless, the examiner opined that it is not as likely as not that the Veteran's left ear hearing loss is due to military noise exposure. The examiner's reasoning was that although there was documentation of hearing loss during service, there was no evidence threshold shift. The Veteran is competent and credible to report the symptoms of his hearing loss. See Layno v. Brown, 6 Vet. App. 465, 469. Here, the Board finds that the Veteran has consistently and credibly asserted that he first began experiencing hearing loss during service. Therefore, the Board finds the Veteran's statements concerning experiencing hearing loss since his in-service noise exposure to be competent and credible evidence of continuity of symptomology for service connection purposes. In light of the above, the Board finds the evidence is at least in equipoise. Resolving all reasonable doubt in the Veteran's favor, service connection for bilateral hearing loss is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for tinnitus The Veteran maintains that his current tinnitus is related to his in-service noise exposure. It is not in dispute that he has tinnitus; tinnitus is a disability capable of lay observation (by the person experiencing it). See Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Veteran was afforded a VA examination in February 2018. The examiner diagnosed tinnitus but opined that it was less likely than not that the Veteran's condition was due to in-service noise exposure. The examiner appears to again have relied solely on the absence of clinical treatment for a large period of time directly after service as the basis for the negative nexus opinion. However, the absence of documented treatment cannot be the sole basis for finding an uncorroborated statement not credible. Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) Tinnitus may be subject to service connection based upon continuity of symptomatology as an "organic disease of the nervous system" under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258, 259 (2015). In this regard, the Veteran has stated that his tinnitus symptoms began during service and continued since that time. The Board finds no reason to question the Veteran's accounts that he experiences ringing in his ears. However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Here, the Board finds the Veteran credible in his reports that tinnitus began in service and has continued ever since. The Veteran's statements regarding onset are consistent with the circumstances of his service and with the record as a whole. Therefore, the Board finds him credible in this regard. In light of the above, the Board finds the evidence is at least in equipoise. Under the benefit of the doubt rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). Resolving all reasonable doubt in the Veteran's favor, the Board concludes that service connection for tinnitus is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Woehlke 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.