Citation Nr: 21013397 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 19-06 342 DATE: March 9, 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 Veteran’s bilateral sensorineural hearing loss began during active service and has continued since then. 2. The Veteran’s tinnitus began during active service and has continued since then. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral sensorineural hearing loss are met. 38 U.S.C. §§ 1110, 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, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from October 1989 to May 1998. On March 1, 2020 the Veteran testified before the undersigned Veterans Law Judge (VLJ) in a Board Virtual Tele-hearing. Service Connection Service connection will be granted if it is shown that a Veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C. § 1110; 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. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In certain cases, competent lay evidence may demonstrate the presence of any of these elements. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The nexus element may also be fulfilled by (1) a nexus opinion or (2) competent and credible evidence showing that the veteran has experienced frequent and persistent symptoms of the disease since service. 38 U.S.C. § 1154(a); 38 C.F.R. §§ 3.303(a), (d); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served for at least 90 days during a period of war and manifests an organic disease of the nervous system to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. Sensorineural hearing loss and tinnitus are included in the list of organic diseases of the nervous system. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. The presumption for chronic diseases relaxes the evidentiary requirements for establishing entitlement to service connection. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012) (holding that “[t]he clear purpose of [subsection 3.303(b)] is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases” and only applies to the chronic diseases set forth in § 3.309(a)). Specifically, § 3.303(b) provides that when a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service (“intercurrent causes”). If the evidence is not sufficient to show that the disease was chronic at the time of service, then the claim may be established with evidence of a continuity of symptoms after service, which is a distinct and lesser evidentiary burden than the nexus element of the three-part test under Shedden. Walker, 708 F.3d at 1338; C.F.R. § 3.303(b). Showing a continuity of symptoms after service itself “establishes the link, or nexus” to service and also “confirm[s] the existence of the chronic disease while in service or [during a] presumptive period.” The provisions of subsection 3.303(b) for chronic diseases apply in this case and therefore the claim may be established with evidence of chronicity in service or a continuity of symptomatology after service. See Walker, 708 F.3d at 1338-1339. For claims for service connection for hearing loss or impairment, VA has specifically defined what is meant by a disability for the purposes of service connection. Impaired hearing will be considered to be a disability 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. Of note, the absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability, i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above, and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). 1. Entitlement to service connection for bilateral hearing loss The Veteran testified that he has had hearing loss since his time in the Air Force, when he served as a radio technician. As an initial matter, the Veteran has a current diagnosis of bilateral sensorineural hearing loss for VA purposes, see November 2013 VA examination. 38 C.F.R. § 3.385. In addition, the Board observes that the Veteran’s DD-214 shows that he served as an aircraft radio technician; exposure to excessive noise is therefore conceded, thus satisfying the in-service injury element for service connection. Moreover, the Board observes that the service treatment records (STR) show a 20-decibel (dB) shift in the right ear from entrance to separation in both the 4000 and 6000 Hertz (Hz) audiometer results. Turning to the nexus requirement, the Board notes that the Veteran has competently and credibly testified before the undersigned VLJ that he has continually experienced hearing loss since his time in-service. He explained that he did not immediately seek treatment because he was hiding the extent of his hearing loss to protect his employment. The Board notes that a layperson is competent to report on the onset and continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). When considering whether lay evidence is competent, the Board must determine on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence”). The Board finds that the Veteran is competent to report the onset and continuation of his hearing loss symptoms and furthermore, the Board finds his statements and testimony credible, and thus, probative. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); see also Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Addressing the negative nexus opinion provided in January 2019, the examiner opined that the Veteran’s hearing loss was less likely than not incurred in or caused by the claimed in-service injury as, “the veteran did not have a significant threshold shift.” It is widely accepted that a threshold shift of 15 decibels is significant (A significant threshold shift is defined as a 15 dB shift or more at any one frequency from 500 Hz to 4000 Hz, per the National Institute for Occupational Safety and Health (NIOSH). Here the Veteran’s STR show a threshold shift of 20 decibels at 4000 Hz, which the examiner did not acknowledge or address. As such, the Board assigns no probative value to the January 2019 VA examiner’s opinion. See McCray v. Wilkie, 31 Vet. App. 243 (2019); see also Nieves-Rodriguez, 22 Vet. App. at 301 (explaining that a medical report without “a reasoned medical explanation” lacks probative value); see also Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). Accordingly, as the probative evidence of record shows that the Veteran’s bilateral sensorineural hearing loss, a chronic disease, began in service and has continued since then, service connection is warranted. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); 38 C.F.R. § 3.303. 3.307, 3.309. 2. Entitlement to service connection for tinnitus Initially, the Board notes that the Veteran is competent to report recurrent tinnitus. Charles v. Principi, 16 Vet. App. 370 (2002). In addition, the November 2103 VA examiner diagnosed the Veteran with tinnitus. Thus, the first element of service connection has been established. Additionally, the Veteran competently and credibly testified that he has had ringing in his ears ever since he fell and hit his head in-service in 1996. Hence, the second element of service connection has been established. (Continued on the next page)   With respect to a nexus between the Veteran’s tinnitus and the in-service head injury and noise exposure, the Board notes that the January 2019 examiner provided no separate opinion for tinnitus, and as noted above, the Board has already found his opinion was without probative value. The Veteran submitted a VA audiologist’s positive nexus statement, wherein the audiologist opined that the Veteran’s tinnitus is consistent with his military noise exposure and his bilateral hearing loss. As this examiner conducted a thorough review of the Veteran’s military and medical history and provided a rationale for her opinion, the Board finds this positive nexus opinion is probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Moreover, the Board affords the Veteran’s testimony regarding his symptomology of recurrent tinnitus since significant probative weight. Accordingly, the Board finds that the probative evidence of record shows continuity of symptomatology of tinnitus. Thus, service connection for tinnitus is warranted. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); 38 C.F.R. § 3.303. 3.307, 3.309. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Nelson 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.