Citation Nr: 21007151 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 18-46 288 DATE: February 8, 2021 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. FINDINGS OF FACT 1. Resolving all doubt in favor of the Veteran, he was exposed to acoustic trauma during active service, and has experienced symptoms of bilateral hearing loss continuously since separation from service. 2. Resolving all doubt in favor of the Veteran, he was exposed to acoustic trauma during active service, and has experienced symptoms of tinnitus continuously since separation from service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 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 June 1945 to November 1946 during World War II. The Veteran testified before the undersigned Veterans Law Judge (VLJ) of the Department of Veterans Affairs (VA) Board of Veterans’ Appeals (Board) at a February 2021 video-conference hearing. Service Connection Entitlement to service connection for bilateral hearing loss and tinnitus. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996). Alternatively, continuity of symptomatology may be established if a claimant can demonstrate: (1) that a condition was “noted” during service; (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 under 38 C.F.R. § 3.303 (b); Barr v. Nicholson, 21 Vet. App. 303 (2007). Where a claimant asserts entitlement to a chronic condition but there is insufficient evidence of a diagnosis in service, he can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309 (a), including neurological disorders such as hearing loss and tinnitus. Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). Such chronic diseases are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1110, 1112; 38 C.F.R. §§ 3.307, 3.309(a). 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, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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 making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a claimant is competent to report on that of which he or she has personal knowledge). 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 appellant 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). During his February 2021 Board hearing, the Veteran asserted that he noticed the sensation of decreased bilateral hearing acuity and ringing in his ears during service and such have continued since that time. In his October 2018 Substantive Appeal, the Veteran described his in-service noise exposure; he reported that he was training, both in the United States and in Germany, with the 14th Infantry to be combat-ready. He reported that he shot many different weapons, and while doing so, was next to fellow service members shooting their own weapons over his shoulders. He asserted that he was exposed to very loud noise, firing a M1 rifle with armor-piercing bullets that made such loud noise that his ears would ring for days. He reported that after service he was hard of hearing. A September 2017 response from the National Personnel Records Center (NPRC) indicates that the Veteran’s service treatment records are unavailable due to fire-related loss. The Veteran’s service separation form, his DD-214 indicates that his military occupational specialty (MOS) was squad leader; he was assigned to the 14th Infantry. He earned qualification with the M1 rifle as a marksman. He had foreign service in Europe. The Veteran is competent to report his in-service experience with noise from training with weapons; his lay statements in this regard are bolstered by his service records showing service with an infantry unit in Europe and qualification with the M1 rifle as a marksman. There is no evidence that the Veteran is not credible on this issue. Layno, 6 Vet. App. 465, 470. The Board thus concedes that he experienced acoustic trauma in service as a result of his military duties. In a March 2018 Disability Benefits Questionnaire (DBQ), the Veteran was diagnosed with tinnitus and demonstrated pure tone thresholds, in decibels, in the right ear of 40, 40, 60, 90, 85, and in the left ear of 25, 40, 65, 90, 85, each measured at 500, 1000, 2000, 3000, and 4000 Hz, respectively. There is evidence of an auditory threshold of 40 decibels or greater in at least one of the specified frequencies, and the Veteran’s bilateral hearing loss thus meets the VA requirements for consideration as a disability. 38 C.F.R. § 3.385. The VA examiner, in March 2018, reported that without medical records, she could not separate the Veteran’s military noise damage as opposed to any age-related or post-service occupational noise damage; thus, she did not offer an etiological opinion as to his bilateral hearing loss. She opined that the Veteran’s tinnitus was less likely than not related to service on the basis that he reported the onset of such as 50 years prior, in essence, 20 years after separation from service, and there was no basis for late onset noise-induced tinnitus. In September 2018, one of the Veteran’s private physicians opined that the Veteran had severe hearing loss damage due to wartime service wherein he suffered permanent damage. The private physician did not provide an adequate rationale for his etiological opinion as to the Veteran’s bilateral hearing loss and did not address the etiology of the Veteran’s tinnitus; his opinion is of little probative value. The probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). The Veteran is competent to report the sensation of decreased hearing acuity and tinnitus during and since service and there is not sufficient evidence of record upon which the Board may find him not credible in this regard. Layno, 6 Vet. App. 465, 470. The Board has considered that he reported the onset of tinnitus as early as during service, during his February 2021 Board hearing and in his October 2018 Substantive Appeal, and as late as 50 years prior, in essence, 20 years after separation from service, during his March 2018 DBQ. It is possible that the Veteran misunderstood the VA examiner’s query as to the onset of tinnitus, as his written statement and Board testimony describe a ringing in the ears during service. The Board has considered that it does not appear that the VA examiner, in March 2018, elicited from the Veteran information as to the onset of his hearing loss symptoms. During his February 2021 Board hearing, he asserted that he noticed decreased hearing acuity during service, and in his October 2018 Substantive Appeal, he reported that after separation from service, he was hard of hearing. It is possible that he was describing both the sensation of decreased hearing acuity during service and being heard of hearing after service, requiring treatment or adaptation. Resolving all doubt in favor of the Veteran, it appears that he intended to convey that he experienced some degree of decreased hearing acuity during service. The VA examiner, in March 2018, considering whether the Veteran’s tinnitus was etiologically related to service, did not have the opportunity to consider the Veteran’s February 2021 Board testimony as to in-service tinnitus and did not appear to consider his lay statement, his October 2018 Substantive Appeal, describing in-service tinnitus; the opinion is thus of little probative value. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Based on the forgoing, there is probative evidence of current bilateral hearing loss that comports with VA standards to be considered a disability under 38 C.F.R. § 3.385 and tinnitus, probative evidence of in-service acoustic trauma, and resolving all doubt in favor of the Veteran, probative evidence of continued bilateral hearing loss and tinnitus symptoms from the time of separation from service to the present. 38 U.S.C. §§ 1110, 1112; 38 C.F.R. §§ 3.307, 3.309, 3.385; Walker, 708 F.3d 1331, at 1337-39. The Board thus finds that service connection for bilateral hearing loss and tinnitus is warranted. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.