Citation Nr: 21023008 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 21-00 405 DATE: April 19, 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 most probative evidence of record reflects that the Veteran’s bilateral hearing loss is related to in-service noise exposure. 2. The most probative evidence of record reflects that the Veteran’s tinnitus had its onset in service. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385. 2. The criteria for establishing service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Air Force from July 1960 to April 1964. This case is before the Board of Veterans’ Appeals (Board) on appeal from a November 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veteran’s Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed disagreement with this determination, and the present appeal ensued. During the pendency of the appeal before the Board, the Veteran also initiated an appeal of an issue seeking to establish service connection for an asbestosis related lung disorder. However, in a March 2021 rating decision, the AOJ granted service connection for this disability. The Veteran did not express disagreement with the assigned downstream issue (initial evaluation or effective dates), and thus, the issue is no longer in appellate jurisdiction. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). Entitlement to service connection for bilateral hearing loss Entitlement to service connection for tinnitus Service connection may be established for a disability resulting from diseases or injuries which are clearly present in-service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in-service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection on a direct basis generally requires medical or, in certain circumstances, 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). Additionally, other organic diseases of the nervous system, which may include sensorineural hearing and tinnitus, are classified as “chronic diseases” under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) also applies. 38 C.F.R. § 3.307; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015) (including tinnitus as an organic disease of the nervous system). Presumptive service connection for “chronic diseases” must be considered on three bases: chronicity during service, continuity of symptomatology since service, and manifestations within one year of the veteran’s separation from service. Walker, 708 F.3d at 1338. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Additionally, a layperson is competent to identify tinnitus. Charles v. Principi, 16 Vet. App. 370, 374 (2002). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, VA shall give the benefit of the doubt to the Veteran. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis An October 2018 VA examination report reflects a diagnosis of tinnitus, and audiological testing revealed findings meeting the criteria for bilateral hearing loss for VA purposes under 38 C.F.R. § 3.385. As such, the first element required to establish service connection, a current disability, has been satisfied with respect to both issues. In service, the Veteran’s MOS was plumbing specialist, which is associated with a moderate noise exposure. In a December 2018 statement the Veteran elaborated that although his MOS was associated with moderate exposure, the locations of his work had him exposed to excessive noise around the “flight line” and the hanger. He further described that any post-separation noise exposure he experienced included the appropriate hearing protection. Therefore, noise exposure during service has been conceded, and the second element for service connection, an in-service incurrence, event, or injury, has been established. As to the final element required to establish service connection, a nexus between the in-service incurrence and the current disability, service treatment records contain no treatment, complaints, or a diagnosis of bilateral hearing loss and tinnitus while in service. Nonetheless, a Veteran may still establish service connection for current hearing disability and tinnitus by submitting medical evidence that the current disability is casually related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). The Veteran was afforded a VA examination in October 2018, and the VA examiner opined that it is less likely as not (less than 50 percent probability) that the Veteran’s current bilateral hearing loss and tinnitus were caused by or a result of military noise exposure during service. The examiner relied on the absence of complaints and treatment of both hearing loss and tinnitus in service. The examiner further relied on the lack of a demonstrated hearing loss at separation, with no significant threshold shift from the Veteran’s enlistment examination. The Veteran provided a private medical opinion in September 2018, prior to his VA examination. The Veteran’s private provider opined that both the Veteran’s bilateral hearing loss and tinnitus began in service, as the Veteran was exposed to the noise of the “flight line” without the use of hearing protection. The private examiner noted that in reaching his conclusions that he had reviewed the Veterans DD-214 and the Veterans medical records. In response to the Veteran’s private provider’s opinion, the October 2018 VA examiner provided an additional opinion in September 2020. In the September 2020 opinion the examiner again relied upon the lack of hearing loss and tinnitus in service, and that the Veteran had normal hearing at separation. The examiner further opined that the Veteran had a high probability of some occupational noise exposure after service. In response to the VA examiner concluding the Veteran had a high probability of noise exposure after separation, the Veteran submitted a statement in July 2019 describing his in service and post separation noise exposure. The Veteran explained that his post separation noise exposure had been attributed to hunting, driving a front-end loader, and working on a fishing boat. Regarding hunting, the Veteran stated that he would hunt about once a year, and that it was more of a social occasion, and less about hunting, and sometimes he would not even shoot. He explained that he only drove a front-end loader for a short time and has stated that he wore hearing protection when necessary. Regarding fishing, the Veteran explained that his work on a fishing boat did not subject him to loud noise. The Veteran described his in-service exposure having been exposed to noise from aircraft as a result of his work. He also elaborated that as a plumber he was exposed regularly to the noise of drills, machines, generators, and compressors. Generally, the degree of probative value attributed to a medical opinion issued by a VA or private treatment provider takes into account certain factors, including the opinions thoroughness and degree of detail, and whether there was a review of the claims file. Prejean v. West, 13 Vet. App. 444 (2000). The analysis also includes whether the examining medical provider had a sufficiently clear and well-reasoned rationale and a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185 (1999). The Board has been charged with the duty to assess the credibility and weight given to the evidence. The Board concludes that the October 2018 and August 2020 medical opinions are of little probative value concerning the etiology of the Veteran’s hearing loss and tinnitus. In both instances the examiner relied on a lack of complaints and treatment in the Veteran’s service treatment records. The Board finds that the examiners’ assertion that the Veteran had normal hearing at the time of discharge, without more, was an insufficient basis for the negative opinions. Service connection for a current hearing loss disability under 38 C.F.R. § 3.385 is not precluded where the Veteran’s hearing was found to be within normal limits on audiometric testing at separation from active military service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Even if disabling loss is not demonstrated at the time of separation, evidence of a current hearing loss disability under 38 C.F.R. § 3.385 and a medically sound basis sufficient to attribute that disability to service (as opposed to after-service causes) may serve as a basis to grant entitlement to service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Board further notes that the Director of the VA Compensation and Pension Service observed in Training Letter 10-02, issued March 2010, that delayed-onset hearing loss and tinnitus must be considered in the service-connection analysis. As the Board finds both the October 2018 and August 2020 medical opinions inadequate, they are given little evidentiary weight. The Board concludes that the September 2018 private medical opinion is deserving of some probative value. The examiner stated that he reviewed the Veteran’s DD-214 and the Veteran’s medical records. The examiner also acknowledged the Veteran’s lay statements regarding when he noticed his tinnitus and hearing loss, and the noise exposure the Veteran experienced in service. As already noted, the Veteran is considered competent to testify as to the observable symptoms such as ringing in his ears. Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran has consistently and credibly maintained the circumstances in which he was exposed to noise in service, and that he began to notice his tinnitus during service, and it has continued ever since. As the Board finds that the Veteran is competent and credible with respect to his continuing symptoms of tinnitus and its initial onset during a period of active duty, the Board has assigned his statements high probative value. Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding veteran competent to testify as to ringing in the ears). Furthermore, lay evidence concerning continuity of symptoms after service, if credible, can ultimately be considered competent, regardless of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Accordingly, and resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for the Veteran’s hearing loss and tinnitus is warranted. 38 U.S.C. § 1110, 1131, 5107(b); 38 C.F.R. § 3.102; 3.303(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. W. Morgan, 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.