Citation Nr: A21020223 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 200527-88544 DATE: December 17, 2021 ORDER Service connection for tinnitus is granted. Service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. The Veteran's tinnitus had its onset in service. 2. The most probative evidence of record is against a finding that the Veteran's bilateral hearing loss disability had onset in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303, 3.307, 3.309. 2. The criteria for service connection for a bilateral hearing loss disability are not met. 38 U.S.C. §§ 1110, 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from December 1983 to June 1984, and from September 1987 to May 1989, with additional service in the Army Reserve. This case comes before the Board of Veterans' Appeals (Board) on appeal from January and May 2020 rating decisions from a Department of Veterans Affairs (VA) Regional Office (RO). On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA). Pub. L. No. 115-55, 131 Stat. 1105 (2017) (to be codified as amended in scattered sections of 38 U.S.C.). This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review dated on or after February 19, 2019. As this case is based on VA rating decisions dated January 2020 and May 2020, this appeal is considered consistent with the new AMA framework. In May 2020, the Veteran submitted a VA Form 10182 (Decision Review Request: Board Appeal). He elected the Direct Review docket, indicating that he did not want a Board hearing and would no submit any additional evidence in support of the appeal. Under the AMA, when a claimant seeks appellate review through the Board's Direct Review docket, the Board only may consider the evidence of record at the time of the Agency of Original Jurisdiction (AOJ) decision on appeal. Pub. Law 115-55 (Aug. 23, 2017), 131 Stat. 1114 (to be codified at 38 U.S.C. § 7113(a)). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, service connection requires (1) the existence of a present disability; (2) in-service incurrence or aggravation of an injury or disease; 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 (Fed. Cir. 2004). With chronic disease shown as such in service (or within the presumptive period under 38 C.F.R. § 3.307, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). 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. Id. However, if chronicity in service is not established or where the diagnosis of chronicity may be legitimately questioned, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). A claimant "can benefit from continuity of symptomatology to establish service connection in the ultimate sense, but only if [the] chronic disease is one listed in 38 C.F.R. § 3.309 (a)." Walker v. Shinseki, 708 F.3d 1331, 1337 (2013). Service connection may nonetheless be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). 1. Service connection for tinnitus. Under the Appeals Modernization Act (AMA), favorable findings made by the AOJ are binding on the Board. In this case, the AOJ identified the favorable finding that the Veteran has been diagnosed with a disability; specifically, private treatment records from August 2019 reflect a diagnosis of tinnitus. The Veteran reported experiencing tinnitus during the appeal period. See November 2019 Hearing Loss and Tinnitus Disability Benefits Questionnaire. The Veteran is competent to describe symptoms observable to his senses; as such, he is also competent to diagnose tinnitus. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Charles v. Principi, 16 Vet. App. 370, 374 (2003). The Board finds him credible, as his statements have been detailed and consistent. Therefore, the Board determines that the first element of service connection is satisfied. The Board finds Veteran's report that he was exposed to acoustic trauma during service to be credible. Further, with regard to the Veteran's claim for service connection for bilateral hearing loss, the AOJ made favorable findings that the Veteran was exposed to hazardous noise while in the military. Therefore, in-service injury is conceded. The Veteran was afforded a November 2019 VA examination that confirmed a diagnosis of tinnitus, however, the examiner did not submit an etiology opinion. A VA examiner also noted in March 2020 that the Veteran's tinnitus disability was less likely than not due to military noise exposure because there were no complaints of tinnitus in service. However, Veteran credibly reports that he began experiencing tinnitus while on active duty. See November 2019 VA examination. The Veteran explains that he first noticed tinnitus after a fall that caused injury to his front teeth while on active duty. Id. The competent and credible statements of both the Veteran are consistent with the evidence. The Veteran competently and credibly reports tinnitus while on active duty service, and that symptoms have been recurrent since that time. See Layno v. Brown, 6 Vet. App. 465 (1994); Thus, even though his service treatment records are silent for reports of tinnitus in service, the Veteran is competent to give reports of tinnitus in service and continued symptoms since service. Thus, all three elements necessary to establish service connection have been met. See 38 C.F.R. § 3.303, 3.307, 3.309; Fountain v. McDonald, 27 Vet. App. 258 (2015). When a condition may be diagnosed by its unique and readily identifiable features, as is the case with tinnitus, the presence of the disorder is not a determination "medical in nature," and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 305 (2007); Charles v. Principi, 16 Vet. App. 370 (2002). Thus, the Board finds that tinnitus experienced by the Veteran is related to service. See Flynn v. Brown, 6 Vet. App. 500, 503 (1994) (noting that "the element of cause and effect has been totally by-passed in favor of a simple temporal relationship between the incurrence of the disability and the period of active duty"). The Board thus finds that service connection for tinnitus is warranted. 2. Service connection for bilateral hearing loss. The Veteran asserts that his bilateral hearing loss disability is related to hazardous noise exposure during service. 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 of 500, 1,000, 2,000, 3,000 and 4,000 hertz is 40 decibels or greater; or when the thresholds for at least three of these frequencies 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. Certain chronic diseases, including organic diseases of the nervous system, to include sensorineural hearing loss, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Under the Appeals Modernization Act (AMA), favorable findings made by the AOJ are binding on the Board. In this case, the AOJ identified the following favorable findings: the Veteran was exposed to hazardous noise while in the military. The Veteran's military occupational specialty as that of Fuel Electronic Systems Repairman, per the Department of Defense, is "moderate" probability for hazardous noise exposure. See December 2015 Statement of Case. The record shows that the Veteran's bilateral hearing loss meeting the definition of a disability for VA compensation purposes as shown on private audiogram in April 2015 and at the May 2016 VA examination. See 38 C.F.R. § 3.385. Accordingly, the first criteria for establishing service connection, a current disability, has been met. At the Veteran's service enlistment audiological evaluation in September 1983, auditory thresholds were recorded, in decibels, were as follows: HERTZ 1000 2000 3000 4000 6000 RIGHT 5 5 5 5 75 LEFT 10 5 5 5 60 The examiner noted moderate hearing loss at 6000 Hz upon entry into service. The Veteran underwent a separation examination in November 1988. On the audiological evaluation in November 1988, pure tone thresholds, in decibels, were as follows: 1000 2000 3000 4000 6000 RIGHT 0 0 10 15 70 LEFT 5 0 5 15 60 Following a review of the record, the Board concludes that the probative evidence is against the claim for service connection for hearing loss. On entry to and separation from service, a significant decibel loss was then shown at 6000 Hz, whereas, for VA purposes under 38 C.F.R. § 3.385, hearing acuity is measured by the auditory thresholds in the frequencies 500, 1000, 2000, 3000, and 4000 Hz. As the audiometric testing results at entry into service entry do not meet the definition of impaired hearing set forth in 38 C.F.R. § 3.385, there can be no finding of preexisting hearing loss, and the Veteran is presumed sound, as to hearing, at service entry. See McKinney v. McDonald, 28 Vet. App. 16 (2016) Following service, the first evidence of hearing loss of record is the August 2015 audiogram. The Veteran has not asserted, nor is there evidence of hearing loss to a compensable degree during the year following discharge from service to support a finding of aggravation on a presumptive basis. 38 C.F.R. § 3.309 (a). The Veteran was afforded two VA examinations as part of the development of this claim. The August 2015 VA examiner opined that the Veteran's hearing loss was not at least as likely as not caused by or a result of an event in military service, rationalizing that hearing loss was present at time of entrance into service and no significant shift in hearing threshold was recorded at time of separation from military service. The Veteran also submitted a report from a private audiologist in August 2019. The audiologist noted the Veteran's lay reports about his bilateral hearing loss and opined that it was more likely than not that the Veteran's bilateral hearing loss is related to noise exposure based the opinion on the Veteran's reported history. The private audiologist also indicated that she reviewed the Veteran's military medical records, but it was not clear whether she had access to the Veteran's complete service treatment records. The examiner did not reference or discuss the Veteran's audiological results at entry or separation from service, nor did she discuss the impact of hazardous noise exposure in the Veteran's post-service career in construction, thus the opinion was not probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). In the November 2019 VA examination, the examiner opined that it is less likely than not that his hearing loss was a result of noise exposure while on active duty. The examiner explained that hearing levels at exit showed no significant shifts as compared to hearing levels at entrance and noted that after service, the Veteran was in the construction business and exposed to loud equipment for 10 years. Similarly, a March 2020 VA examiner provided a medical opinion in regard to the claim. The examiner opined that the condition was less likely than not incurred in or caused by the claimed in-service injury, but the rationale was based entirely on the November 2019 VA examiner's opinion. The Board finds the VA opinions of record to be more probative than that of the private audiologist, due to the VA opinions being more fully informed and providing a more thorough rationale. Further, unlike with tinnitus, the Veteran does not have the medical qualifications to competently opine that his hearing loss is related to his military service. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Accordingly, a preponderance of the probative evidence reflects that the Veteran's bilateral hearing loss was not onset during service, and the claim for service connection for bilateral hearing loss is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not for application. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). J. Kirby Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Booker 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.