Citation Nr: 21022138 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 16-19 914 DATE: April 14, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. Resolving all reasonable doubt in his favor, the Veteran’s bilateral hearing loss is etiologically related to service. 2. Resolving all reasonable doubt in his favor, the Veteran’s tinnitus is etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 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 United States Army from February 1969 to February 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The record reflects that the Veteran requested a hearing before a Veterans Law Judge. However, the Veteran did not appear at the scheduled hearing in June 2019. As such, the Board will consider his hearing request to be withdrawn. 38 C.F.R. § 20.704(d). Service Connection Here, the Veteran alleges that he is entitled to service connection for tinnitus and hearing loss. He contends that his tinnitus and hearing loss were caused by hazardous noise exposure during service. More specifically, he alleges that, while serving as a cook in the Republic of Vietnam between July 1969 and July 1970, the mess hall was located within 100 yards of an artillery group. He claims that the noise from the artillery group, including the constantly firing guns, was loud enough to shake the mess hall. Because of this noise exposure, he argues he developed tinnitus and hearing loss. VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a “service connection.” 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to show a service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection for certain chronic diseases, such as “other organic diseases of the nervous system” which includes hearing loss and tinnitus, may be established on a presumptive basis by showing that the 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. §§ 1101, 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 that disease during the period of service. 38 C.F.R. § 3.307 (a). The term “chronic disease” refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101 (3); 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where a chronic disease under 3.309(a) is shown as such in service or in the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). In cases where a chronic disease is “shown as such in service,” the Veteran is “relieved of the requirement to show a causal relationship between the condition in service and the condition for which service connected disability compensation is sought.” Walker, 708 F.3d at 1336. Instead, service connection may be granted for subsequent manifestations of the same chronic disease without any evidence of link or connection between the chronic disease shown in service and manifestations of the same disease at a later time. In other words, “there is no ‘nexus’ requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease.” Id. If evidence of a chronic disease is noted during service or during the presumptive period, but the chronic condition is not “shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned,” i.e., “when the fact of chronicity in service is not adequately supported,” then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed. Id. at 1339. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of the positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. With respect to the first element of service connection, the Veteran’s recent VA audiology treatment records reflect a current diagnosis of mild to moderate sensorineural hearing loss, with hearing worse in the left ear than the right. Although his available post-service treatment records do not specifically contain a diagnosis of tinnitus, ringing in the ears is capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). As such, the Board finds that there is credible evidence of a current diagnosis of tinnitus as well. Turning to the second element of service connection, an in-service onset or occurrence, the Board notes that the Veteran’s military occupational specialty is listed as “cook” on his DD Form 214. Additionally, his military personnel records reflect that he was stationed in Vietnam from July 1969 to July 1970. Although service treatment records do not reflect specific complaints of tinnitus or hearing loss, the Veteran complained of “ear, nose, or throat trouble” at his January 1971 separation examination. Additionally, the record contains audiogram data from his induction and separation examinations. At his December 1968 induction examination, pure tone thresholds were measured, in decibels, at the following frequencies: Hertz 500 1000 2000 3000 4000 Right Ear 10 (25) 10 (20) 10 (20) X 10 (15) Left Ear 5 (20) -10 (0) 5 (15) X 10 (15) The Board notes that based on recent historical research of service audiometric practices, it is assumed that service department audiometric tests prior to January 1, 1967, were likely in American Standards Association (ASA) units. Service department audiograms conducted prior to January 1, 1967, generally used ASA units. For service department audiograms conducted after December 31, 1970, it is assumed the standards set by the International Standards Organization-American National Standards Institute (ISO-ANSI) were used. However, for service department audiograms conducted between January 1, 1967, and December 31, 1970, it is unclear whether the thresholds were recorded using ASA or ISO-ANSI units absent affirmative evidence that a particular audiometric standard was used at the time. In this case, because it is unclear whether the January 1968 audiogram data was measured in ASA or ISO-ANSI metrics, the data from this period will be considered before and after converting the data, and the Board will rely on the unit measurements most favorable to the Veteran. To convert the data, the Board has added 15 decibels at 500 Hertz, 10 decibels at 1000 Hertz, 2000 Hertz, and 3000 Hertz, and 5 decibels at 4000 Hertz. The conversion is reflected in the parentheses above. At his January 1971 separation examination, pure tone thresholds were measured, in decibels, at the following frequencies: Hertz 500 1000 2000 3000 4000 Right Ear 10 10 10 X 10 Left Ear 10 10 10 X 10 As this data was generated in 1971, the Board will assume it is recorded using ISO-ANSI units, and no conversions have been made. Having compared the unconverted data from his induction examination (i.e., the data more favorable to the Veteran’s appeal) to the data from his separation examination, the Board notes that the Veteran experienced pure tone threshold shifts in the left ear at all frequencies except 4000 Hertz. This bolsters the Veteran’s contentions that he was exposed to hazardous noise from the artillery group that was stationed near the mess hall where he worked in Vietnam. Ultimately, having reviewed his relevant in-service personnel and treatment records, the Board finds that the evidence is at least in relative equipoise that he was exposed to hazardous noise during service and that, as a result, it is likely that he experienced acoustic trauma. Last, the Board must consider whether the Veteran’s hearing loss and tinnitus are etiologically linked to his service. To that end, the Board notes that no VA examination or nexus opinion has been obtained with respect to his claims for service connection. Nonetheless, medical evidence is not categorically required to satisfy the nexus element of the service connection framework. See Davidson v. Shinseki, 581 F.3d at 1212. Indeed, the Board notes that in August 2011 he reported to VA audiologists that he had experienced progressive hearing loss since returning from Vietnam in 1970 and that no hearing protection was issued during service. He also reported to his VA audiologist that he had not been exposed to hazardous noise recreationally or through work since his time in service. The Veteran’s statements regarding the onset of his hearing loss are considered exceptionally trustworthy, as they were made for the purpose of medical diagnosis and prior to filing his claim. See White v. Illinois, 502 U.S. 346, 356 (1992). Moreover, these statements are consistent with his January 1971 separation examination, where he endorsed ear, nose, or throat trouble. Resolving all reasonable doubt in his favor, the Board thus finds that a preponderance of the evidence suggests that his current hearing loss and tinnitus had their onset during service and have continued ever since. Considering the foregoing, service connection for bilateral hearing loss and tinnitus is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. L.M. YASUI Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Rademacher, 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.