Citation Nr: 21009185 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 19-27 457 DATE: February 19, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran’s bilateral hearing loss disability was caused by in-service acoustic noise exposure. 2. The evidence is at least evenly balanced as to whether the Veteran’s tinnitus was caused by in-service acoustic noise exposure. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for bilateral hearing loss disability have been met. 38 U.S.C. §§ 1110, 1131, 1154(a), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 1154(a), 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from June 1955 to June 1959. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2017 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO), which denied the Veteran’s claims of entitlement to service connection for bilateral hearing loss and tinnitus. This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2) and 38 C.F.R. § 20.900(c). In August 2020, the Board remanded the claims on appeal for additional development, to include obtaining VA medical opinion regarding the etiology of the disabilities. Entitlement to service connection for hearing loss and tinnitus Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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. Certain chronic diseases, including organic diseases of the nervous system such as sensorineural hearing loss and tinnitus, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that his bilateral hearing loss and tinnitus are due to in-service acoustic trauma he suffered while serving aboard an aircraft carrier, the USS Ticonderoga, from September 1957 to April 1958. He specifically asserted that he was located next to the aircraft and the mechanics, which exposed him to extreme loud noise. See June 2017 Notice of Disagreement and September 2019 VA Form 9. The Veteran’s service treatment records (STRs) reveal that his entrance and separation examinations were conducted through Whisper tests and did contain audiometric results necessary to determine if any threshold shifts occurred. A January 2017 VA examination revealed that the Veteran had tinnitus and diminished hearing that met the VA criteria to establish hearing disability in both ears. It was noted that mixed hearing loss was likely partially due to noise exposure. Ultimately, however, the examiner stated that she could not provide a medical opinion regarding the Veteran’s disabilities without resorting to speculation. In June 2017, the Veteran furnished a medical letter from his private physician stating that the Veteran’s hearing-related issues are possibly a consequence of loud noise exposure from his military service. Pursuant to the Board remand, in October 2020 the Veteran underwent VA examination, which confirmed his bilateral hearing loss and tinnitus, but stated it was less likely than not related to his active service. As rationale for hearing loss disability, the examiner opined that “the only evidence of noise exposure during service is the [V]eteran’s statements of aircraft noise” and “he did not complain of hearing difficulties upon separation or shortly after the military.” As rationale for tinnitus, the examiner opined that “no evidence of verifiable noise injury could be located in the Veteran’s claims file” and his “audiogram is the only accepted method of demonstrating noise injury.” Moreover, she stated that the “Veteran did not serve in combat, and veteran had a MOS with low probability of noise exposure.” However, the Board finds that the examiner’s opinion is flawed as it was based on the absence of in-service evidence of bilateral hearing and tinnitus disabilities. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (the absence of hearing loss disability in service is not in and of itself fatal to a claim for service connection for bilateral hearing loss disability). Additionally, the opinion does not consider the Veteran’s competent and credible statement of noise exposure in service. In this regard, a medical opinion is inadequate if it is based solely on the absence of documentation in the record and does not take into account the Veteran’s reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). The Veteran’s military personnel records confirm he served aboard the USS Ticonderoga. Although the Veteran’s military occupational specialty (MOS) was personnel clerk, that does not negate the competence and credibility of the Veteran’s statements that his current hearing loss and tinnitus began when he was positioned next to aircraft and mechanical noise while aboard the aircraft carrier. The Veteran indicated in his lay statements that he experienced hearing loss and tinnitus in and since service due to acoustic trauma. The Board finds the Veteran’s statements in this regard to be competent and credible. Moreover, VA laws and regulations require an adjudicator to review the entire record, including lay statements, and give due consideration to VA policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). After so doing, and with reasonable doubt resolved in the Veteran’s favor, the Board finds that the Veteran’s competent and credible lay statements regarding the in-service noise exposure, and hearing loss and tinnitus in and since service, some clinical evidence showing a connection between the disabilities at issue and inservice acoustic trauma, and current diagnoses of bilateral hearing loss and tinnitus, provide a sufficient basis to grant service connection for bilateral hearing loss and tinnitus. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Kovacs, 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.