Citation Nr: 21013865 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 16-13 419 DATE: March 10, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus also is granted. FINDING OF FACT It is just as likely as not the Veteran’s bilateral (left and right ear) hearing loss and tinnitus are from repeated exposure to hazardous loud noise during his service and consequent injury (acoustic trauma). CONCLUSION OF LAW Resolving all reasonable doubt in his favor, the criteria are met for entitlement to service connection for bilateral hearing loss and tinnitus. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the Army from February to May 1979 and from July 1980 to July 1983. The Veteran requested a hearing before this Board in his March 2016 Substantive Appeal (on VA Form 9). A videoconference hearing before this Board consequently was scheduled for June 4, 2019. However, the Veteran did not appear for his hearing, so was marked a “no show”, and, to date, he has not provided any justifiable explanation or good cause for his absence or requested to have his hearing rescheduled. Therefore, the Board is proceeding with adjudication of his claims and, in fact, granting them. Entitlement to service connection for bilateral hearing loss and tinnitus is granted. The Veteran contends that his hearing loss and tinnitus are related to his service in the military – especially from repeated exposure to excessively loud engine noise and consequent injury (acoustic trauma). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or a disease incurred in or aggravated by active service in the line of duty, even if the disability initially was diagnosed after service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. A Veteran must have a certain level of hearing loss according to 38 C.F.R. § 3.385 to, in turn, be considered a ratable disability for VA compensation purposes. More specifically, impaired hearing will be considered a ratable disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.   But a Veteran need not have had this level of hearing loss during his service for service connection to be granted. This VA regulation does not preclude service connection for hearing loss that first met this regulation’s requirements after service, so long as there is the required attribution of the hearing loss to the Veteran’s service, as opposed to other (i.e., intercurrent) causes. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Thus, a claimant who seeks to establish service connection for a current hearing disability must show, as is required in a claim for service connection for any disability, that the current disability is the result of an injury or a disease incurred in service, the determination of which depends on a review of all the evidence of record – including that pertinent to service. Hensley, 5 Vet. App. at 159-60. See also Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The Veteran has sufficient hearing loss in each ear, so bilaterally, to satisfy the threshold minimum requirements of § 3.385 to be considered a ratable disability. Moreover, tinnitus (i.e., a ringing, buzzing or roaring sound in the ears), by its very nature, is inherently subjective so the type of condition that may be established as existing merely by lay evidence, alone. See Charles v. Principi, 16 Vet. App 370, 374 (2002). Consequently, resolution of this appeal turns instead on whether there also is the required attribution of the Veteran’s current bilateral hearing loss disability and tinnitus to his service, and especially to noise exposure and consequent injury (acoustic trauma) he cites as the source or cause of these conditions. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").   The Veteran denies having any significant noise exposure either prior to or since his service, certainly none to the extent he had in service. And, after reviewing his service treatment records (STRs) and reported history of noise exposure throughout his military service, a private examiner opined in May 2014 that the Veteran’s hearing loss is “as likely as not. . . .” related to his military noise exposure. So, this examiner attributed the Veteran’s hearing loss to his service. In contrast, a VA examiner subsequently opined in August 2014 that it is less likely than not the Veteran’s hearing loss is the result of noise exposure while on active duty because there was no evidence indicating he had developed hearing loss during his time in service. Because, however, hearing loss does not necessarily need to be diagnosed in service for service connection to be found warranted – provided, as mentioned, there is probative (competent and credible) evidence linking the current hearing loss disability to a relevant disease, injury or event in service (which, here, is acoustic trauma), the Board givens this unfavorable medical opinion less probative weight. See 38 C.F.R. § 3.303(d). The Board may favor one medical opinion over another if it provides an adequate statement of reasons or bases. D’Aries v. Peake, 22 Vet. App. 97, 107 (2008). For a medical examination and consequent opinion to be considered adequate, they must consider all the relevant evidence of record, including lay statements. The opinion also must be supported by explanatory rationale; indeed, most of the probative value of an opinion comes from discussion of its underlying reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The May 2014 private examination and opinion that are favorable to the claim for bilateral hearing loss address the Veteran’s individual circumstances – including especially in relation to his noise exposure in service, and consider his lay statements indicating specific exposure to engine noise during time spent as a stock clerk in service. Certainly, then, this supporting opinion is as probative as the August 2014 opinion against the claim. In this circumstance the Veteran is given the benefit of the doubt and the claim granted rather than denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990) (“a [V]eteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.”); see also Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (An “absolutely accurate” determination of etiology is not a condition precedent to granting service connection, nor is “definite” or “obvious” etiology). Rather, this need only be an “as likely as not” proposition, which in this instance it is for the reasons and bases discussed. When the evidence is in relative equipoise, the claimant prevails. See Gilbert, 1 Vet. App. at 49.  Given the Veteran’s competency to report on personally experienced events (notably, such as exposure to hazardous engine noise during his service) and the consistency with which he has reported these events both directly to the Board and to medical examiners (both VA and private), the Board finds no reason to question the credibility of his statements and affords them probative value. As observed by the Federal Circuit Court, lay evidence must “demonstrate some competence.” See King v. Shinseki, 700 F.3d, 1339, 1345 (Fed. Cir. 2012) (citing 38 U.S.C. § 5107(b) and 38 C.F.R. § 3.307(b)) (internal quotation marks omitted). See also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that, for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration). The Board, therefore, also is granting service connection for the additionally claimed tinnitus since also as likely as not a result of the acoustic trauma the Veteran sustained during his service. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. B. Kucera 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.