Citation Nr: 21008587 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 18-21 993 DATE: February 17, 2021 ORDER Entitlement to service connection for bilateral sensorineural hearing loss (claimed as a bilateral hearing loss disability) is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, the Veteran’s hearing loss is causally related to active service. 2. Resolving reasonable doubt in the Veteran’s favor, the Veteran’s tinnitus is causally related to active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral sensorineural hearing loss are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Army from April 1947 to September 1948. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2017 rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office. The Veteran testified before a different Veteran’s Law Judge at a hearing in August 2018. This judge is no longer employed by VA. A transcript of this hearing is in the record. The case was previously before the Board, most recently in June 2020, when remanded for further development. In January 2021, when informed that the Veteran had a right to another hearing to be conducted by a judge who would rule on the claims, the Veteran declined a new hearing. Service Connection 1. Entitlement to service connection for bilateral sensorineural hearing loss is granted. 2. Entitlement to service connection for tinnitus is granted. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. “To establish a right to compensation for a present disability, a veteran must show: ‘(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’ the so-called “nexus” requirement.” Holton v. Shineski, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). For a veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases, to include sensorineural hearing loss and tinnitus, if the disability is manifest to a compensable degree within one year of discharge from service. See 38 U.S.C. § 1101, 1112, 1113 (2012); 38 C.F.R. § 3.307, 3.309 (2017); Fountain v. McDonald, 27 Vet. App. 258 (2015). Where the condition noted during service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned, service connection may be established by a continuity of symptoms after discharge. 38 C.F.R. § 3.303 (b) (2017). The presumption relating to a continuity of symptoms can be used only in cases involving conditions recognized as chronic under 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of chronic disease in service there is required a combination of manifestations enough to identify the disease entity, and enough observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Impaired hearing is considered a disability for VA purposes 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 Veteran testified in August 2018 that, during basic training, the Veteran was near big canons for an exercise when a big explosion accident happened. He testified that his ears were left bleeding and he went to the dispensary. He reported that he has suffered from ringing in his ears ever since. The Veteran’s DD-214 also showed that the Veteran had qualified on a M1 rifle. The Board finds the Veteran’s testimony competent and credible. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that the Board can weigh the lay testimony and decide as to whether the lay testimony supports a finding of in-service incurrence or continuity of symptoms). Thus, exposure to acoustic trauma during active service is conceded. Furthermore, due to the inherently subjective nature of tinnitus, the Veteran is competent to provide a lay diagnosis. See Charles v. Principi, 16 Vet. App. 370 (2002). Thus, a current diagnosis of tinnitus is established. The Veteran also has a current diagnosis of bilateral hearing loss. A November VA examination reveals that the Veteran reported that he needed to use hearing aids. However, the Veteran reported that even with hearing aids, he could not hear at church. He further reported that “sounds blend together” and that he has difficulty hearing in the presence of background noise. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: November 2020 HERTZ 500 1000 2000 3000 4000 CNC RIGHT 25 40 80 75 70 72% LEFT 20 30 80 90 100 60% This evidence establishes a current diagnosis of bilateral hearing loss per VA standards. See 38 C.F.R. § 3.385. January 2017 and November 2020 VA examiners opined that it is less likely than not that the Veteran’s bilateral hearing loss is caused by or a result of military service. The January 2017 VA examiner relied on a lack of medical records. The November 2020 VA examiner acknowledged the Veteran’s and others’ lay statements and that VA conceded that his active duty medical records were lost but still found that “there remains no documentation for the development of hearing loss within a reasonable time frame post active duty.” The Veteran provided an October 2018 medical opinion from a private doctor. The private doctor opined that the Veteran’s bilateral high frequency sensorineural hearing loss had a “likely component of noise trauma during service.” The Board finds the private opinion more probative than that of the VA examiners. The VA examiners relied on an absence of evidence. See Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015) (indicating that a VA examiner may not generally rely on the absence of evidence as negative evidence). Furthermore, 38 C.F.R. § 3.385 establishes that service connection for a current hearing disability is not precluded where hearing was within normal limits at separation. See Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993). Therefore, the Board finds the VA examiner’s opinion unpersuasive. Conversely, the private doctor considered the Veteran’s statements and audiometric findings and provided clear conclusions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Therefore, probative weight is given to the private audiological opinion and the Board finds the Veteran’s current hearing loss is causally related to his in-service exposure to acoustic trauma. While no treatment records exist from during the applicable presumptive period, the Board finds that the Veteran continued to experience the same symptoms since service. The Veteran is competent to report that symptoms of hearing loss and tinnitus. The Veteran’s statements, testimony, and reports are found to be credible and entitled to probative weight, as they are internally consistent and consistent with other evidence of record. (Continued on the next page)   Contemporaneous medical evidence is not required under 38 C.F.R. § 3.303(b) to find that a chronic disease was “noted” in service or within a presumptive period for purposes of continuity of symptomatology. “[A]s long as the condition is noted at the time the veteran was in service such noting need not be reflected in any written documentation (other than as required to be in a format sufficient for inclusion as part of the record and proceedings before the Secretary and the Board)... either contemporaneous to service or otherwise.” Savage v. Gober, 10 Vet. App. 488, 496 (1997). Upon review of the record, the Board finds the evidence to be at least even as to whether the Veteran’s current bilateral sensorineural hearing loss and tinnitus arose in service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for bilateral sensorineural hearing loss and tinnitus is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James Hekel, Associate 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.