Citation Nr: 21013459 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 20-05 647 DATE: March 9, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. REMANDED Entitlement to service connection for peripheral vestibular condition, to include as secondary to service-connected tinnitus, and to include as secondary to service-connected bilateral sensorineural hearing loss, is remanded. FINDING OF FACT The Veteran’s bilateral sensorineural hearing loss began during active service and has continued since then. CONCLUSION OF LAW 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. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from May 1978 to September 1982. In March 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ) in a Board Virtual Tele-hearing. 1. Entitlement to service connection for bilateral hearing loss The Veteran asserts that his hearing loss was due to the noise exposure he experienced in the Air Force working around jet engines and generators on the flight line. The Board agrees. 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). Certain chronic diseases may be entitled to service connection on a presumptive basis under 38 C.F.R. § 3.303(b). 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 as sensorineural hearing loss, an organic disease of the nervous system, is included in the list of chronic diseases, 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. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. 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). As an initial matter, the Veteran has a current diagnosis of bilateral sensorineural hearing loss for VA purposes, see May 2014 and June 2018 VA examinations. 38 C.F.R. § 3.385. In addition, the Board observes that the Veteran’s DD-214 shows that he served as an aircraft mechanic; exposure to excessive noise is therefore conceded, thus satisfying the in-service injury element for service connection. Turning to the nexus requirement, the Board notes that the Veteran has credibly testified before the undersigned VLJ that his hearing loss began in service and has continued since then, becoming progressively worse. 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”). Here, the Board finds that the Veteran is competent to report the onset and continuation of his hearing loss symptoms and the Board finds his statements and testimony credible, and therefore, 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 opinions rendered in the VA examinations, the Board notes that the May 2014 examiner provided a positive nexus opinion for the Veteran’s left ear hearing loss, as well as tinnitus. However, he provided a negative nexus opinion regarding the Veteran’s right ear hearing loss, stating that the Veteran’s records and military history do not explain why the Veteran’s right ear is much worse than his left ear. He offered no rationale as to why the asymmetric hearing loss was significant, nor did he address the audiogram in the Veteran’s service treatment records (STR) which shows that the Veteran’s right ear audiogram results were worse that the left ear audiogram results as early as February 1978. The June 2018 VA examiner provided a negative nexus opinion based solely on the absence of a reported threshold shift in service and did not address the Veteran’s competent lay evidence of hearing loss beginning in service. Thus, the Board assigns no probative value to the VA examiners’ negative nexus opinions. Nieves-Rodriguez, 22 Vet. App. at 301 (explaining that a medical report without “a reasoned medical explanation” lacks probative value). 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. REASONS FOR REMAND 2. Entitlement to service connection for peripheral vestibular condition, to include as secondary to service-connected tinnitus, and to include as secondary to service-connected bilateral sensorineural hearing loss, is remanded. The Veteran testified that he has experienced dizziness and staggering since he left service in the Air Force. He also submitted a scientific article, showing a link between tinnitus and peripheral vestibular disorders, at his Board Hearing. Although the Veteran attended a VA Ear Conditions examination in June 2018, no diagnosis was provided that addressed the Veteran’s symptomology, other than his previously diagnosed tinnitus and hearing loss. The Board requires a medical examination and opinion that provides a diagnosis and rationale regarding the Veteran’s symptoms of a peripheral vestibular disorder and the relationship between any peripheral vestibular disorder and the Veteran’s service-connected tinnitus and bilateral sensorineural hearing loss, as well as a discussion of the article submitted by the Veteran at his Board Hearing. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the proper diagnosis for the Veteran’s peripheral vestibular condition, shown as staggering, inability to walk in a straight line, and dizziness. The examiner must opine whether it is at least as likely as not (50 percent probability or greater) that his condition had its onset during service. The examiner must opine whether any current peripheral vestibular disability is at least as likely as not (a) caused by, or (b) aggravated by (worsened beyond natural progression) his service-connected tinnitus. The examiner must opine whether any current peripheral vestibular disability is at least as likely as not (a) caused by, or (b) aggravated by (worsened beyond natural progression) his service-connected bilateral sensorineural hearing loss. The examiner must comment on all scientific articles found within the claims file regarding the connection between tinnitus and peripheral vestibular disorders. The examiner must comment on the Veteran’s brain tumor (diagnosed in 1993 and 1994) and subsequent surgery in relation to the Veteran’s peripheral vestibular condition. 2. The examiner should elicit a full history from the Veteran and consider the lay statements of record, to include his testimony. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation. (Continued on the next page)   3. A rationale for all opinions expressed is requested as adjudicators are precluded from making any medical findings. 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.