Citation Nr: 21021275 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 16-22 865 DATE: April 12, 2021 ORDER Entitlement to service connection for bilateral sensorineural hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran’s bilateral sensorineural hearing loss began in service and has continued since then. 2. The Veteran’s tinnitus began in service and has continued since then. CONCLUSIONS OF LAW 1. 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.  2. The criteria for service connection for tinnitus 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 FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1966 to May 1968 with service in Vietnam. This appeal was last before the Board in June 2020 when it was remanded for a VA medical examination and etiology opinion. As that action has been completed, the appeal is now ready for appellate review. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection 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).  Where a veteran served for at least 90 days during a period of war and manifests an organic disease of the nervous system to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service.  Sensorineural hearing loss and tinnitus are included in the list of organic diseases of the nervous system.  38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309.  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 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.   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). 1. Entitlement to service connection for bilateral sensorineural hearing loss The Veteran seeks service connection for his bilateral hearing loss and stated that his hearing loss began in service while he was serving in Vietnam and was exposed to excessive military noise living next to an active air strip and “between two med-evac hospitals with helicopters and ambulances coming in and out day and night,” and has continued since then. See Notice of Disagreement and Substantive Appeal. As an initial matter, the Veteran has a current diagnosis of bilateral sensorineural hearing loss for VA purposes as seen in the November 2020 VA Hearing Loss and Tinnitus examination. Turning to the in-service incurrence of injury, the Board finds the Veteran’s statements regarding his exposure to excessive military noise credible, and therefore probative, as it is consistent with the places, types, and circumstances of the Veteran’s service at base camp QuiNhon in Vietnam. Thus, the Board finds that the first two elements required for service connection are met. Addressing the nexus requirement, the Board notes that the Veteran has competently and credibly stated that he “noted considerable hearing loss soon after my tour of duty in Vietnam,” and that it has continued ever 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 credible, and therefore, probative.  38 C.F.R. § 3.304(d); 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).    As noted above, this appeal was remanded previously to obtain a sufficient medical opinion regarding the nexus between the Veteran’s hearing loss and his active duty service. Although the Board in a November 2018 Remand specifically found that the Veteran’s statements of considerable hearing loss since Vietnam credible, the VA examiners have repeatedly discounted his lay evidence and have relied on a lack of treatment for hearing problems in-service and a lack of threshold shift in the service treatment records (STR). The November 2020 examiner repeated earlier opinions and provided a negative nexus opinion based on, “his enlistment and separation audiograms were normal…there was no objective evidence of acoustic trauma…” The Board observes that in the same examination the examiner reported, “he reported exposure to noise while serving in Vietnam. The Veteran has stated on numerous occasions that his hearing loss first began in Vietnam or shortly after his separation from service. On the August 2015 Notice of Disagreement, he contends that hearing loss began soon after his tour of duty in Vietnam. VA Form 9 indicates he had ear problems since his service in Vietnam.” The Board notes that for an opinion to be adequate, it must include consideration of the Veteran’s statements, be based on accurate factual premises, and contain a rationale sufficient to support its conclusions. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As this opinion does not include a consideration of the Veteran’s statements, and, as it appears to have required in-service medical evidence of hearing loss in contravention of Ledford, the Board assigns it no probative value. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (the absence of in-service evidence of hearing loss is not fatal to a claim for service connection). 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. 2. Entitlement to service connection for tinnitus As an initial matter, the Board notes that the Veteran is competent to report intermittent recurrent tinnitus.  Charles v. Principi, 16 Vet. App. 370 (2002).  In addition, the November 2020 VA examiner diagnosed the Veteran with tinnitus, described as intermittent ringing. Thus, the first element of service connection has been established.   Additionally, the Veteran competently and credibly stated that what he called “ear problems” began while serving in Vietnam and his exposure to excessive military noise from living beside an active airstrip. The Board finds this lay evidence is probative. Hence, the second element of an in-service injury required for service connection has been established.  With respect to a nexus for the Veteran’s tinnitus, the Board notes that the Veteran has consistently stated that his tinnitus began in Vietnam and has continued ever since then, and the Board finds that this evidence is probative.   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). The Board observes that this lay evidence shows a continuity of symptomology, and thus satisfies the nexus requirement under Walker. Accordingly, the Board finds that the elements for service connection for tinnitus have been met; thus, service connection for tinnitus is warranted.  Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); 38 C.F.R. § 3.303. 3.307, 3.309. 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.