Citation Nr: 21008924 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 15-34 894A DATE: February 18, 2021 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran’s current bilateral hearing loss for VA purposes is at least as likely as not related to in-service acoustic noise exposure. 2. The Veteran’s current tinnitus is at least as likely as not related to in-service acoustic noise exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.385. 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1969 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In his October 2015 substantive appeal, the Veteran requested a videoconference hearing before a Veterans' Law Judge at the RO. 10/01/2015 Form 9. The hearing was held on March 18, 2019, but a complete transcript of the proceeding is not of record due to audio malfunctions. A December 2020 correspondence informed the Veteran of this fact and gave him the opportunity to request another Board hearing by responding within 30 days. The letter stated that if the Veteran did not respond within 30 days from the date of the letter, the Board would assume he did not desire another hearing and will proceed according. The Veteran did not respond within 30 days and therefore waived the opportunity for another Board hearing. The Board will adjudicate all issues on the record. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (1) the existence of 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. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).   Impaired hearing will be considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz (Hz) is 40 decibels (dB) or greater; when the auditory thresholds for at least three of those frequencies are 26 dB or greater; or when Maryland CNC speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385. Certain chronic diseases, including sensorineural hearing loss, will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007); 38 C.F.R. § 3.159(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). 1. Service connection for bilateral hearing loss is granted. The Veteran seeks service connection for bilateral hearing loss. 04/30/2014 VA 21-526EZ, Fully Developed Claim (Compensation). He contends that his current hearing loss for VA purposes resulted from serving in the Army infantry where he was exposed to hazardous noise and did not have ear protection. 10/02/2014 NOD. For the following reasons, the Board finds that the Veteran has a current diagnosis of bilateral hearing loss as defined by VA and the evidence is at least in equipoise as to whether his hearing loss is related to hazardous noise exposure in service. The Veteran underwent a VA audiological examination in August 2014, where the puretone threshold and speech recognition results both meet the requirements of 38 C.F.R. § 3.385, bilaterally. Additionally, the examiner diagnosed him with bilateral mixed hearing loss, which includes sensorineural hearing loss. 08/28/2014 C&P Exam. The evidence of record thus indicates that the Veteran has a current diagnosis of bilateral hearing loss for VA compensation purposes. See 38 C.F.R. § 3.385. Next, the Board finds that the Veteran’s reports of in-service hazardous noise exposure are supported by the evidence of record. In this regard, Veteran’s DD Form 214 confirms that his military occupational specialty (MOS) was weapons infantryman and shows that he was awarded the Combat Infantryman Badge. 05/12/2014 Certificate of Release or Discharge from Active Duty. As such, combat noise exposure is established per the record. Further, the Veteran’s reports regarding in-service hazardous noise exposure are competent and credible, and exposure to acoustic trauma in service is therefore established. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (stating that a Veteran is competent to report on that of which he or she has personal knowledge); see also Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (Fed. Cir. 2007) ("the Board retains discretion to make credibility determinations and otherwise weigh the evidence submitted"). Thus, this appeal turns on whether there is a nexus between the Veteran's hearing loss and service. As noted above, the Veteran was afforded a VA audiological examination in August 2014, where he was diagnosed with bilateral hearing loss for VA purposes. 08/28/2014 C&P Exam. Regarding nexus, the examiner opined that the Veteran’s hearing loss was less likely than not related to his military service. As rationale, the examiner reasoned that the Veteran’s service treatment records (STRs) showed his entrance and separation hearing thresholds were within normal limits. Id. at 3.   The Board acknowledges the August 2014 examiner’s negative opinion as to nexus However, the Board finds that the opinion is supported by an inadequate rationale and fails to show adequate consideration of all the relevant evidence, specifically the Veteran’s reports of in-service hazardous noise exposure and his MOS. Accordingly, the August 2014 medical opinion is entitled to limited probative weight. Here, the August 2014 opinion was based on the examiner’s conclusion that the Veteran’s STRs were silent for evidence of in-service hearing loss, based on normal audiological findings upon examination at entrance and discharge. However, medical opinions that rely solely on the absence of evidence in STRs to corroborate an in-service incurrence are inadequate. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007); Smith v. Derwinski, 2 Vet. App. 137, 140 (1992). Moreover, the August 2014 examiner failed to acknowledge the evidence of an auditory threshold shift shown by a review of the Veteran’s entrance and exist audiological results. See 07/10/2014 STR Medical at 5 and 14. In this regard, an examiner is to consider and directly address any shifts of acuity thresholds found in the STRs even if the shifts do not amount to a hearing loss disability under 38 C.F.R. § 3.385. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (noting that if the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflecting an upward shift in tested thresholds in service, though still not meeting the requirements for a "disability" under 38 C.F.R. § 3.385, and (b) post-service audiometric testing produces findings meeting the requirements of 38 C.F.R. § 3.385, rating authorities must consider whether there is a medically sound basis to attribute the post-service findings to the injury in service, or whether they are more properly attributable to intercurrent causes). Further, the examiner failed to acknowledge a December 2012 VA Audiology Consult of record which shows that the Veteran reported that his bilateral hearing loss began shortly after separation from service and has continued and worsened ever since. See 07/23/2014 CAPRI at 17. In light of the above, the Board finds that the evidence is at least in equipoise as to whether the Veteran's current bilateral hearing loss was caused by acoustic trauma in service. As discussed above, the Veteran has a current diagnosis of bilateral hearing loss for VA purposes, his exposure to hazardous noise in trauma is established, and he has competently and credibly reported an onset of bilateral hearing loss shortly after separation with symptoms continuing through the present. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, the Board finds that entitlement to service connection for bilateral hearing loss is warranted. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.385 2. Service connection for tinnitus is granted. The Veteran seeks service connection for tinnitus and contends that his tinnitus is related to in-service hazardous noise exposure. Specifically, the Veteran asserts that he began to experience recurrent tinnitus while serving on active duty as an infantryman in Vietnam. See 10/02/2014 NOD. At the August 2014 VA examination, the found that the Veteran did not have a current diagnosis of tinnitus. 08/28/2014 C&P Exam. Nonetheless, the Veteran asserts that he has a current diagnosis of tinnitus, which is a diagnosis capable of lay observation. See 10/02/2014 NOD. He is competent to report when he first experienced tinnitus and that the symptoms have continued since service. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (holding that “ringing in the ears is capable of lay observation.”). The Board finds the Veteran’s statements regarding having tinnitus since service discharge to be both competent and credible. (Continued on the next page)   In this case, the Veteran’s in-service exposure to combat noise and hazardous noise as a weapons infantryman has been established, and he credibly asserts that his tinnitus has been continued since that time. Under the circumstances, the Board finds that the evidence for and against the claim of entitlement to service connection for tinnitus is at least in equipoise. Service connection for tinnitus is thus warranted as directly incurred in service. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, 3.303(a). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Tremont 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.