Citation Nr: 21014065 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 17-52 208 DATE: March 11, 2021 ORDER Entitlement for service connection for bilateral hearing loss is granted. Entitlement for service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran’s bilateral hearing loss is related to his military service. 2. The Veteran’s tinnitus is related to his military service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Army from August 1968 to April 1970. In November 2019, the Board denied the above claims. The Veteran subsequently successfully appealed the denials to the Court of Appeals for Veterans Claims (Court). In a September 2020 Joint Motion for Remand (JMR), the Court vacated the November 2019 denials of the Veteran’s service connection claims of bilateral hearing loss and tinnitus and remanded the matters for readjudication consistent with the JMR. The claims have since returned to the Board for readjudication. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish entitlement to service-connected compensation benefits, 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, including organic diseases of the nervous system such as sensorineural hearing loss, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease such as sensorineural hearing loss is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Entitlement for service connection for bilateral hearing loss disability is granted. The Veteran contends that his bilateral hearing loss disability had its onset in service based on noise exposure while performing his duties in service. Specifically, in the October 2017 VA Form 9, the Veteran reported that he was exposed to acoustic trauma while working in water supply. He stated that he was not provided hearing protection when the generators and other loud equipment were running. Additionally, the Veteran stated that he was not given a hearing examination upon his separation. First, as to evidence of a current disability, a December 2014 VA examination noted that the Veteran was diagnosed with bilateral sensorineural hearing loss and met the criteria for a hearing loss disability under the provisions of 38 C.F.R. § 3.385. Thus, there is evidence of a current disability and the first element of a service-connection claim is met. As to evidence of a disease or injury in service, the service treatment records do not show that the Veteran sustained a disease or injury to his ears during service. For example, the Veteran was afforded auditory testing in June 1968 and April 1970. The Veteran’s hearing was noted to be within the normal range of hearing at the June 1968 entrance and April 1970 separation examinations. In an April 1970 Report of Medical History, the Veteran reported that his present health was excellent and specifically denied ever having or having ear, nose, or throat trouble. Regardless, given the Veteran’s lay statements of being exposed to noise while working in the water supply, the Board concedes he had in-service noise exposure. Thus, the Veteran meets the second element of a service-connection claim. Therefore, the only remaining issue is whether a nexus may be established. As to a nexus, in a September 2014 VA outpatient clinic audiology consult note, the audiologist stated that the Veteran’s noise history involved “military noise exposure to artillery & gunfire noise.” The VA audiologist further stated that the Veteran’s hearing test results “were consistent with aging and noise-induced cochlear pathology,” and that his tinnitus was also “consistent with cochlear pathology.” The VA provider’s opinion is probative, because it is based on an accurate medical history, takes into account the Veteran’s statements that he suffered in-service noise exposure in service, and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The December 2014 VA audiology examination showed the Veteran had a current bilateral hearing loss disability for VA purposes. The audiologist noted that there is a history of tractor trailer driving and mechanic occupational noise exposure in the Veteran’s post service history. The audiologist opined that the Veteran’s hearing loss was less likely than not related to the military noise exposure or acoustic trauma. The audiologist reasoned that the Veteran’s entrance and separation audiograms indicate normal hearing bilaterally without significant threshold shift in hearing. The examiner added that the records showed no hearing loss or significant changes in hearing thresholds greater than normal measurement variability during service. In support of her opinion, the audiologist referenced the Institute of Medicine (IOM) report and the report’s conclusion that there is insufficient scientific basis to conclude that permanent hearing loss direction attributable to noise exposure will develop long after noise exposure. Based on the objective findings, the IOM report stated an audiologist can conclude that there is no evidence on which to conclude that the Veteran’s current hearing loss was caused by or a result of the Veteran’s military service, including noise exposure. The Board finds the December 2014 VA opinion inadequate, as it does not consider the Veteran’s lay statements that he was exposed to noise in service while working in water supply. Given the September 2014 probative opinion, and the Veteran’s credible statements of hearing loss in and since service, a nexus has been established. Therefore, the Board finds that the preponderance of the evidence supports the Veteran’s service connection claim for bilateral hearing loss, and the claim is granted. 2. Entitlement for service connection for tinnitus is granted. The Veteran contends that his tinnitus had its onset in service based on noise exposure while performing his duties in service. As to evidence of a current disability, a September 2009 private examination report from H. H. shows that the Veteran was diagnosed with tinnitus. Thus, there is evidence of a current disability and the first element of a service-connection claim is met. As to evidence of a disease or injury in service, the service treatment records do not show that the Veteran sustained a disease or injury to his ears during service. For example, the Veteran was afforded auditory testing prior to his entrance in service in June 1968, as well as a separation examination in April 1970. The Veteran’s hearing was noted to be within the normal range of hearing at the entrance and separation examinations. In an April 1970 Report of Medical History, the Veteran reported that his present health was excellent and specifically denied ever having or having then ear, nose, or throat trouble. However, the Veteran has reported that his tinnitus had its onset in service. Given the Veteran’s credible and competent statements, the Veteran meets the second element of a service-connection claim. Therefore, the only remaining issue is whether a nexus may be established. As to a nexus, the December 2014 VA examiner opined that the Veteran’s tinnitus is considered less likely as not caused by military noise exposure. The audiologist stated that there was not a significant in-service threshold shift present and in the absence of an objectively verifiable noise injury, the association between claimed tinnitus and noise exposure cannot be assumed to exist. The examiner noted that tinnitus may occur following a single exposure to high-intensity impulse noise, long-term exposure to repetitive impulses, long-term exposure to continuous noise, or exposure to a combination of impulses and continuous noise. The examiner added that in most cases, tinnitus is accompanied by measurable hearing loss, with which the Veteran has also been diagnosed. The Board finds the December 2014 VA opinion inadequate, as the VA examiner did not address the Veteran’s lay statements that he has had ringing in his ears in and since service. Indeed, the Veteran asserts he talked about ringing in his ears while in service but thought it would go away. He said that it has been more than 40 years and it has still not subsided. See December 2014 Statement in Support of Claim. The Veteran is competent to report symptoms such as ringing or buzzing in his ears as this requires only personal knowledge as it comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). In addition, the Veteran is competent to identify a disorder such as tinnitus for diagnostic purposes. 38 C.F.R. § 3.159(a)(2); Barr, 21 Vet. App. at 310; Charles v. Principi, 16 Vet. App. 370, 374 (2002); Falzone v. Brown, 8 Vet. App. 398, 405 (1995). The Board finds the Veteran’s assertions regarding the onset of his tinnitus to be credible. The Board also finds the Veteran’s opinion related to his tinnitus probative. In addition, as noted above, in a September 2014 VA outpatient clinic audiology consult note, the provider stated that Veteran’s noise history involved “military noise exposure to artillery & gunfire noise,” and his tinnitus was “consistent with cochlear pathology.” The VA provider’s opinion is probative, because it is based on an accurate medical history, takes into account the Veteran’s statements that he suffered acoustic trauma in service, and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Given the Veteran’s probative opinion and the September 2014 probative opinion, a nexus has been established. Therefore, the Board finds that the preponderance of the evidence supports the Veteran’s service connection claim for tinnitus, and the claim is granted. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. E. Grossman, 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.