Citation Nr: 21013853 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 20-02 924 DATE: March 10, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. Bilateral hearing loss was not present during active duty, manifest to a compensable degree within one year of separation, continuity of symptomatology is not established and the Veteran’s current bilateral hearing loss is not causally related to an in-service injury or disease. 2. The appellant’s tinnitus at least as likely as not began while he was on active duty. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty in the United States Army from February 1962 to October 1964. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, denied the claims for service connection. This decision was appealed in a notice of disagreement (NOD) received by VA in July 2018. A Statement of the Case (SOC) was issued by VA in December 2019. VA received the appellant’s Substantive Appeal (Form 9) in January 2020, perfecting the appeal and requesting a hearing before the Board. The appellant appeared before the undersigned Veterans Law Judge at a hearing in February 2021. A transcript of that hearing has been added to the record on appeal. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. 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) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including other organic diseases of the nervous system, such as sensorineural hearing loss and tinnitus, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a) (3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). To establish service connection under this provision, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology, however, can be applied only in cases involving those conditions explicitly enumerated under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for bilateral hearing loss is denied. The appellant contends that his bilateral hearing loss is at least as likely as not related to active service. He asserts that he was exposed to significant levels of noise while on active duty in the course of his duties as a member of a mortar team. He reported a specific noise exposure event during a training exercise, in which the mortar round was fired before he could cover his ears. He testified at his Board hearing that he had pain in his ear for a few hours after the reported incident, with the pain subsiding as the hours went by. He reported not seeking any treatment at the time of the injury. He did not state that the pain persisted after his separation from service, or that he noticed any loss of hearing acuity at the time or within a year after separation from service. It is his belief that this incident caused his current bilateral hearing loss. He did report a persistent symptom of ringing in the ears that began after that reported noise exposure, which is discussed in more detail below. The appellant’s service treatment records show hearing within normal limits at entrance onto active duty and at separation from active duty, even after adjusting the measurements from American Standards Association (ASA) units to International Standards Organization – American National Standards Institute (ISO-ANSI) units. In fact, the appellant’s entrance and separation examination records show an improvement in his overall hearing acuity at separation. In his Report of Medical History at separation, the appellant did not indicate any trouble with his ears or hearing. The appellant has not contended that he sought treatment for hearing loss while on active duty. The appellant was diagnosed with bilateral hearing loss at a December 2017 VA examination. At that examination, the appellant reported serving in the United States Army and having no combat experience. He indicated that his exposure to loud noise in service was related to his duty on a mortar team. He stated that he was not issued hearing protection and that he had minimal or no noise exposure after separation from service. After reviewing the appellant’s history and conducting a full audiological examination, the examiner determined that the appellant’s current hearing loss disability was not at least as likely as not related to his active service. The examiner explained that the appellant had hearing sensitivity in both ears within normal limits at the time of his separation examination in September 1964. The examiner noted that, according to the American College of Occupational and Environmental Medicine, hearing loss due to hazardous noise is no longer a threat to hearing acuity once the exposure to the noise is discontinued, which the Board notes occurred for the appellant at separation from active service. The implication of this medical research is that, as the appellant had hearing within normal limits at separation indicating no hearing loss at that time, there was no risk of delayed onset hearing loss as a result of the reported in-service noise exposure because hazardous noise is no longer a threat to hearing acuity once the exposure to the noise is discontinued. The Board finds that the first and second elements of service connection are met for this claim. There is a current hearing loss disability and the appellant has credibly reported an in-service noise exposure. However, after a review of the evidence of record, the Board finds that the preponderance of the evidence is against finding a medical link between the appellant’s current hearing loss and his reported in-service noise exposure. In reaching this finding, the Board has afforded significant probative weight to the December 2017 VA medical opinion, as the opinion was offered by a licensed audiologist, who has the required competency to offer an opinion on this medically complex question. The opinion was rendered after a complete audiological examination, including consideration of the appellant’s history of noise exposure, and is supported by a well-reasoned rationale. See Nieves - Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board has considered the appellant’s contention that his hearing loss disability is due to his in-service noise exposure, but also that he did not testify that his hearing loss developed during active service. The appellant only reported a brief period of pain in the ears after the noise exposure event. The Board notes the appellant is competent to report signs and symptoms of hearing loss, such as reduced hearing acuity; however, the record does not reflect that the appellant is competent, whether by training, knowledge, or experience, to offer an opinion regarding the cause of his hearing loss disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The issue is medically complex and requires specialized knowledge of the interactions between multiple body systems and diagnostic testing which is not observable by a lay person. As such, the Board finds the appellant’s lay opinion is not probative on the question of whether his hearing loss is related to his active service. The Board affords greater probative weight to the December 2017 VA medical opinion. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Additionally, the Board observes that the appellant’s hearing loss is not shown to have its inception during service. While he did report ear pain after exposure to the mortar during training, he indicated this had subsided and did not report any difficulty with hearing as a result, apart from a persistent ringing in the ears, discussed below. His hearing was within normal limits at separation, indicating that he did not have hearing loss at that time. He has not asserted continuity of symptomatology that began during service, as he did not report continuing ear pain after service either at the time of his separation, or more recently during the course of his pursuing this claim. Consequently, the Board finds that the preponderance of the probative evidence of record is against the appellant’s current hearing loss being related to an in-service noise exposure. Therefore, the Board concludes that the criteria for entitlement to service connection for bilateral hearing loss are not met. 38 C.F.R. § 3.303. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable. 38 C.F.R. § 3.102; see also Gilbert v. Derwinksi, 1 Vet. App. 49, 54 (1990). 2. Entitlement to service connection for tinnitus is granted. The appellant contends that he developed tinnitus while on active duty. At his February 2021 Board hearing, he testified that began experiencing ringing in his ears after an incident in service where a mortar was fired in training before he could cover his ears. He relayed that this ringing had not stopped since the incident, which occurred while he was on active duty. The appellant underwent a VA examination of his hearing in December 2017 which determined that his tinnitus was at least as likely as not related to his bilateral hearing loss. However, at the time, the appellant reported that he could not remember when his symptoms of ringing in the ears had begun. Because of the inherently subjective nature of tinnitus, it is readily capable of lay diagnosis. See Charles v. Principi, 16 Vet. App. 370 (2014); see also Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (stating the “[l]ay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection” (quoting Layno v. Brown, 6 Vet. App. 465, 469 (1994)). Thus, the appellant is competent to report when he began experiencing tinnitus and the history of his symptoms. Considering this, the Board finds that the record establishes both a current disability of tinnitus, and an in-service incurrence of the disability, with continuity of symptoms since service. While the appellant’s service treatment records are silent regarding complaints of tinnitus in service, for the reasons discussed above, the Board finds the appellant is competent to state that he has had tinnitus since his period of active duty. Further, the Board finds his assertions credible, as his statements are consistent with his duties serving on a mortar team, which has a high probability for exposure to hazardous noise. While the Board notes his military occupational specialty does not indicate he served as mortar man, the appellant’s military personnel records indicate he was trained on mortar use and that he had a rating of “expert” on the mortar. In weighing the evidence, the Board has determined that the appellant is competent to report his onset of symptoms and finds no reason to determine the appellant is not credible on this issue. While the VA medical opinion attributed his tinnitus to his hearing loss disability, the Board notes that this was done without considering that his symptoms of ringing in the ears began during active service, rather than after his hearing loss developed. As discussed above, the examiner noted no hearing loss present for the appellant at separation from service. Considering this, the Board finds the evidence is at least in equipoise on the question of whether the appellant’s tinnitus began during his period of active service and continued with the same symptomatology since service. The appellant has credibly testified that the symptoms of tinnitus began during active service. As such, granting the appellant the benefit of the doubt, the Board finds that the appellant’s tinnitus disability had its onset while he was on active service and that symptoms of that disability have been recurrent since service. Gilbert v. Derwinksi, 1 Vet. App. 49, 54 (1990). Therefore, the Board concludes that the criteria for service connection are met for this claim. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Kleponis, 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.