Citation Nr: 21013159 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 17-37 052 DATE: March 8, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. Resolving all reasonable doubt in his favor, the Veteran's bilateral hearing loss is causally or etiologically due to military noise exposure during service. 2. Resolving all reasonable doubt in his favor, the Veteran's tinnitus is causally or etiologically due to military noise exposure during service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1970 to December 1974. This matter comes before the Board of Veterans' Appeals (Board) from an April 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2020, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 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 Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d at 1377; see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App. 370, 374 (2002). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. The Veteran contends his bilateral hearing loss and tinnitus are due to his in-service noise exposure as a boiler room technician, and from five-inch guns firing during service in Vietnam. The Board concludes that the Veteran has a current disability that is related to in-service noise exposure. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The Veteran was afforded a VA examination in March 2016, which shows the Veteran has a current diagnosis of bilateral hearing loss for VA purposes. Thus, the question becomes whether the current disability is related to service. On this question there are probative opinions in favor of and against the claim. The evidence against the claim is the March 2016 VA examination report in which the examiner found the Veteran's bilateral hearing loss and tinnitus were less likely than not caused by or a result of military noise exposure. The examiner reasoned the review of service medical records (SMRs) indicated hearing within normal limits at the time of entrance to active service and no documentation of hearing levels at the time of release from active service or tinnitus in the Veteran’s SMRs. Therefore, based on the Veteran’s reported history of significant noise exposure during and after service, it is not possible to determine if the hearing loss and tinnitus are related to military noise exposure without resorting to mere speculation. In an April 2018 private opinion, Dr. R.R. opined that the military noise exposure is the source for the Veteran’s severe to profound sensorineural hearing loss. There is no doubt that eight hours of exposure with no hearing protection to a noise source in this range caused severe damage to his cochlear hair cells. Dr. R.R. reasoned that the Veteran was exposed to boiler room noise daily for eight hours a day during service. The Veteran did this job for three plus years and left the military with ringing in his ears and hearing loss. Additionally, the Veteran was exposed to explosive noise while in Vietnam. He slept in a bunk just below five-inch guns for eighteen months and there was daily use of these guns when actively engaged in his Vietnam deployment. Dr. R.R. noted pre and post service recreational noise exposure, mainly hunting, and that the Veteran used earmuffs with all those exposures. The Board finds Dr. R.R.'s medical opinion persuasive to show that the Veteran's bilateral hearing loss and tinnitus are due to his in-service noise exposure. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current bilateral hearing loss and tinnitus are related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for bilateral hearing loss and tinnitus is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Edwin B. Esmenda, 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.