Citation Nr: 21021054 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 13-14 058 DATE: April 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 was exposed to acoustic trauma during his active duty service. 2. The Veteran’s bilateral hearing loss was incurred in, or caused by, his military service. 3. The Veteran’s tinnitus was incurred in, or caused by, his military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 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. §§ 1101, 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 on active duty from May 1979 to May 1983. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2020, the Board remanded this matter for further development. That development having been completed, this matter has returned to the Board for further appellate review. As stated in the March 2020 Board remand, the Veteran’s May 2013 hearing request is considered withdrawn. 38 C.F.R. § 20.603(d). Additionally, the Veteran has a separate appeal with respect to his claim of entitlement to service connection for a cervical spine disability. The Veteran has requested a hearing on that issue before a VLJ. Accordingly, that issue will be the subject of a later Board decision issued by the VLJ who presides over the hearing. 1. Entitlement to service connection for bilateral hearing loss 2. Entitlement to service connection for tinnitus Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent medical or lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). There is also a presumption of service connection for the chronic diseases listed in 38 C.F.R. § 3.309(a), including sensorineural hearing loss and tinnitus, which are categorized as “organic diseases of the nervous system.” See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012) (holding that § 3.303(b) only applies to the chronic diseases listed in § 3.309(a)). Under this presumption, if the chronic disease manifested in service, then service connection will be established for subsequent manifestations of the same chronic disease at any date after service, no matter how remote, without having to show a causal relationship or medical nexus, unless the later manifestations are clearly due to causes unrelated to service (“intercurrent causes”). 38 C.F.R. § 3.303(b); Walker, 708 F.3d at 1338. When the condition noted during service is not shown to be chronic at the time, or its chronicity may be legitimately questioned, then a continuity of symptoms after service must be shown to establish service connection under the presumption for chronic diseases. Id.; Walker, 708 F.3d at 1338-39. To establish service connection based on a continuity of symptoms under § 3.303(b), the evidence must show: (1) a condition “noted” during service; (2) post-service continuity of the same symptoms; and (3) a nexus between the present disability and the post-service symptoms. Fountain v. McDonald, 27 Vet. App. 258, 263-64 (2015). In addition, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, there is a presumption of service connection for sensorineural hearing loss and tinnitus (as organic diseases of the nervous system under 38 C.F.R. § 3.309(a)) if the disease manifested to a degree of 10 percent or more within one year from the date of separation from service, even if there is no evidence of the disease during the service period itself. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). This presumption may be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). The Veteran maintains that he suffers from bilateral hearing loss and tinnitus, which are the direct result of noise exposure during active service. He specifically asserts that he developed hearing loss during his active service as a result of his in-service exposure to traumatic noise, including significant amounts of aircraft noise. See May 2011 Notice of Disagreement. The Veteran has been diagnosed with bilateral hearing loss and tinnitus. See February 2013 VA Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ). Accordingly, he has a current disability. Davidson, 581 F.3d 1313. The Veteran has reported unprotected exposure to acoustic trauma and resultant hearing loss symptoms, including tinnitus, during his active service. See May 2011 Notice of Disagreement; June 2013 VA 646 Statement of Accredited Representative; November 2020 Hearing Loss and Tinnitus DBQ (stating tinnitus began during service). Moreover, the Veteran’s statements of his exposure to acoustic trauma have been consistent throughout the appeals process. The Board notes that VA has already conceded in-service noise exposure. Therefore, his significant exposure to acoustic trauma has been established. The Veteran is competent to report observable hearing loss symptomatology and experiencing an injury and resultant auditory pathology in the form of hearing loss and tinnitus during service, as well as experiencing hearing loss symptoms since his separation from active service, as such are capable of lay observation. See Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that a Veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge); Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson, 581 F.3d 1313. The Board notes that the record contains varying statements by the Veteran in regard to the date of onset of his hearing loss and tinnitus. See February 2013 Hearing Loss and Tinnitus DBQ (reporting tinnitus for ten years); November 2020 Hearing Loss and Tinnitus DBQ (onset of tinnitus was in service). Giving the Veteran the benefit of the doubt, the Board finds the Veteran credible. See Caluza v. Brown, 7 Vet. App. at 711, aff’d, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table) (holding that, in determining whether statements submitted by or on behalf of a claimant are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant). These credible reports of a continuity of symptomatology suggest a link between his current hearing loss and tinnitus with his military service. See Duenas v. Principi, 18 Vet. App. 512 (2004). The Board notes that there are negative etiological opinions of record in the form of February 2013 and November 2020 VA examination reports. The examiners opined it was less likely that the Veteran’s bilateral hearing loss was related to his military service. The VA examiners rationale was based primarily on the absence of the Veteran’s service treatment records. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (finding that the lack of documented hearing loss while in service is not fatal to a claim for service connection). Further, the VA examiners did not address the Veteran’s statements regarding his in-service hearing loss symptomatology. Accordingly, the VA medical opinions form an inadequate foundation upon which to base a denial of entitlement to service connection for bilateral hearing loss. In sum, the Veteran has competently and credibly described suffering in-service acoustic trauma and reported a continuity of symptomatology of bilateral auditory pathology in the form of hearing loss and tinnitus during and since his active service. See Charles, 16 Vet. App. 370; Jandreau, 492 F.3d at 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); see also Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001). Accordingly, the Board finds that service connection for bilateral hearing loss and tinnitus is warranted. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. M. Stedman, 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.