Citation Nr: 21008591 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 17-06 943 DATE: February 17, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. Affording the Veteran the benefit of the doubt, his current bilateral hearing loss symptoms began during his active service. 2. Affording the Veteran the benefit of the doubt, his current 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, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 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 September 1961 to July 1965. 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 May 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ), and a transcript of that proceeding has been associated with the claims file. In June 2019 and September 2020, the Board remanded this appeal for additional development. In June 2019, the Board noted that the May 2014 rating decision determined that new and material evidence had not been received sufficient to reopen the previously denied claims for service connection for bilateral hearing loss and tinnitus. However, since the time of the prior denial, the Veteran’s previously unavailable service treatment records (STRs) for his period of active service were located and associated with the claims file, and the claims were reconsidered in accordance with 38 C.F.R. § 3.156(c). In September 2020, the Board remanded this matter to obtain relevant VA examinations, with proper notice and explanation of the importance of appearing for this examination to be provided to the Veteran. While some of conducted development is lacking or in part not responsive to the remand directive, the Board is herein granting the Veteran’s appeal in full. Accordingly, the Veteran will not be prejudiced by proceeding on the merits, a remand to correct any errors or lack of compliance with the Board’s prior remand directives is not necessary, and any deficiency is deemed to be harmless error. Service Connection Bilateral Hearing Loss 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, 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence of: (1) the existence of a present disability; (2) inservice 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). Sensorineural hearing loss is a “chronic disease” listed under 38 C.F.R. § 3.309(a). Therefore, the presumptive service connection provisions of 38 C.F.R. § 3.303(b) apply to the Veteran’s claim for service connection to bilateral hearing loss. 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. 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). In the current appeal, the Veteran contends that he has bilateral hearing loss related to his military service, when he worked as a storekeeper in the supply department but spent most of the time working in the hanger bay around jet engine noise and other machinery. He also noted that his living compartment was close to the propeller on the ship, resulting in further noise exposure. See April 2019 Board Hearing and October 2009 VA Form 9. He describes bilateral hearing loss since service, and his statements are credible and consistent with his service. The Board has no reason to doubt the credibility of his statements and concludes that there has been continuity of hearing loss symptoms since service. 38 C.F.R. § 3.303(b). The Veteran has a current diagnosis of bilateral hearing loss per 38 C.F.R. § 3.385. Sensorineural hearing loss was indicated on that examination at 1000 Hertz, with hearing acuity of 50 decibels in both ears. See October 2020 VA examination. According to the October 2020 VA audiological examination report, the examiner incorrectly noted that there were no STRs for the period of active duty from 1961 to 1965. As previously discussed in the Introduction portion of this decision, the Veteran’s STRs from this period were obtained in 2017. Despite this error, however, the examiner acknowledged that the Veteran’s service included significant noise exposure with little or no hearing protection. Specifically, the examiner recorded the Veteran’s reports of in-service noise exposure, when he worked in the hanger bay of an aircraft carrier and was exposed to jet engine noise and other machinery. Significantly, the examiner also opined that, for that reason, it was at least as likely as not that the Veteran’s hearing loss was related to his military service. An addendum opinion was obtained in November 2020, when the examiner opined that the Veteran’s hearing loss was less likely than not related to his military service. The examiner indicated that there was no significant decrease in hearing acuity while in service based on his hearing examinations from 1961 during his active service and a 1994 reserves examination. The examiner then indicated that there was no evidence of hearing loss within one year of discharge. However, in providing this negative opinion, the examiner did not address the Veteran’s contentions as to his in-service noise exposure or whether his hearing loss was related to his in-service noise exposure, despite being asked to do so. The November 2020 negative nexus opinion is of little probative value, as the examiner appears not to have taken the Veteran’s lay statements about his noise exposure into account in providing a negative 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). Although aspects of the October 2020 VA opinion were based on an incorrect or incomplete factual premise, the examiner still appeared to base the provided opinion on the Veteran’s contentions regarding his in-service noise exposure, and, for this reason, the Board finds it persuasive despite its flaws. Private evaluations are of record suggestive of a link between the Veteran’s military noise exposure and his bilateral hearing loss. A February 2009 evaluation noted that he had a history of excessive noise exposure while working on the flight deck during service and that noise exposure could be responsible “at least partly” responsible for his bilateral hearing loss. Similarly, a July 2014 private evaluation recorded the Veteran’s military noise exposure and opined that the Veteran’s history of noise exposure is likely a factor in the pattern of his hearing loss. Although these evaluations did not indicate a review of the Veteran’s claims file, the examiners recorded the Veteran’s reports of his military noise exposure and took such into account in discussing the cause of his bilateral hearing loss. For this reason, the Board assigns the private evaluations more probative weight than the VA examinations. The lay evidence provided by the Veteran, combined with private records and aspects of the VA examinations of record, is sufficient to establish the continuity of symptomatology in this instance, as the Veteran has consistently reported hearing loss beginning in service and continuing to the present. 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 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 the Veteran’s 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. 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).  The Veteran contends that he has tinnitus as a result of his military service, when he was exposed to flight line noise, jet engines, and other machinery. As noted earlier herein, the Veteran was exposed to acoustic trauma during service, and in-service noise exposure is therefore conceded. He describes ringing in his ears for years and notes that these problems began in service. He also asserts that this symptomatology is still present today in both ears. The Board finds that the Veteran’s statements as to the onset of his tinnitus are credible and that his statements alone are sufficient to establish the criteria for service connection for tinnitus. The Board concedes his exposure to hazardous noise during his active duty as previously noted herein. As such, the in-service event element of his claim for service connection for tinnitus is met.  In reaching this conclusion, the Board acknowledges that the October 2020 and November 2020 VA examiners provided a negative etiology opinion for the Veteran’s tinnitus. However, multiple private treatment records indicate that the Veteran’s tinnitus is likely related to his military noise exposure and recorded his consistent reports of tinnitus since his service. Accordingly, the probative value of the VA examiners’ opinions is undermined by the Veteran’s statements and the private records throughout the appeal period that include consistent reports of the Veteran’s tinnitus beginning during his military service. Tinnitus symptoms are uniquely capable of lay observation. 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. (CONTINUED ON NEXT PAGE) The probative evidence supports this claim. Accordingly, service connection for 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.