Citation Nr: 21024042 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 17-28 786A DATE: April 21, 2021 ORDER Service connection for left ear hearing loss is granted. Service connection for sinusitis is granted. FINDINGS OF FACT 1. Resolving all doubt in the Veteran’s favor, the record shows that the Veteran’s left ear hearing loss is related to service. 2. Resolving all doubt in the Veteran’s favor, the record shows that the Veteran’s sinusitis had its onset in service. CONCLUSIONS OF LAW 1. The criteria to establish service connection for left ear hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria to establish service connection for sinusitis have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from December 1993 to December 1997. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. This case was previously before the Board in March 2020 and remanded for additional development. Service Connection In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2018). The United States Court of Appeals for the Federal Circuit held that “pain in the absence of a presently-diagnosed condition can cause functional impairment,” which may qualify as a “disability” for VA compensation purposes. Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). The Federal Circuit in Saunders, however, cautioned against the notion that “a veteran could demonstrate service connection simply by asserting subjective pain” because, to establish that a disability is present, the veteran “will need to show that... pain reaches the level of a functional impairment of earning capacity.” Id. at 1367-68. “Functional impairment,” the Federal Circuit noted, is defined as the inability of the body or a constituent part of it “to function under the ordinary conditions of daily life including employment.” Id. at 1363 (quoting 38 C.F.R. § 4.10). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. See Alemany v. Brown, 9 Vet. App. 518 (1996). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. See 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). 1. Left ear hearing loss The Veteran reports that he is entitled to service connection for left ear hearing loss. In support, the Veteran reports diminished hearing during and since service, which he attributes to hazardous noise exposure during military service. The Veteran reported that he was exposed to acoustic trauma from rifles and pistols in the firing range. Additionally, he reported that he noticed a decline in his hearing in service which continues to get worse. See BVA Hearing transcript (January 2020). VA may only find hearing loss to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies of 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. See 38 C.F.R. § 3.385. The Board remanded this case in March 2020 to determine the current severity of the Veterans left ear hearing. Subsequently on January 2021, a VA examiner provided a negative nexus opinion stating that it was less likely as not that his hearing loss is related to service and that he currently does not have a hearing disability for VA purposes. See VA medical examination (January 2021). However, the same examination shows that the Veteran’s Maryland CNC test result in his left ear was 72 percent, thus confirming a hearing loss disability on his left ear for VA purposes. See VA medical examination (January 2021) and see also 38 C.F.R. § 3.385. Moreover, the medical and lay evidence, shows that the Veteran was exposed to acoustic trauma in service. Further, the Veteran credibly and competently provided sworn testimony that his condition started in service and has been recurrent ever since. The Veteran is competent to report hearing loss symptoms that began in service and the Board finds the Veteran's statements credible. See 38 C.F.R. § 3.159 (a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno. The Board finds that the medical and lay evidence, including the Veteran's sworn testimony, show that the Veteran's left ear hearing loss condition had its onset in service and have been recurrent since that time. Resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's left ear hearing loss had its onset during his military service. As such, service connection is granted. See 38 C.F.R. § 3.303 (a). 2. Sinusitis The Veteran seeks service connection for his sinusitis. In support, he reports that his sinus condition started in service and continued thereafter. See BVA Hearing transcript (January 2020) and see also STR (November 1994 and February 1996). Additionally, he reported that since service he continued to receive treatment and in 2008 had surgery to help with his condition. See also VA medical examination (January 2021), and see also Non-VA medical treatment record (January 2008). The Veteran was diagnosed with chronic sinusitis. See VA medical examination (January 2021) and see also Non-VA medical treatment record (January 2008). Thus, the Veteran has a current condition and establishes the first element for service connection. Additionally, the service treatment records show he suffered from sinus symptoms in service. See STR (November 1994 and February 1996). The Veteran’s record shows sinus complaints, symptoms and treatment. Further, the Veteran provided sworn testimony explaining his sinus problems in service and treatments thereafter. See BVA hearing transcripts (January 2020). The evidence shows that the Veteran’s sinus condition is related to service, thus, service connection is warranted. See Flynn v. Brown, 6 Vet. App. 500, 503 (1994) (noting that “the element of cause and effect has been totally by-passed in favor of a simple temporal relationship between the incurrence of the disability and the period of active duty”). The Board finds that the evidence linking the Veteran’s sinus condition to service is probative, competent and credible. Further, the Board also finds that the competent and credible medical and lay evidence, including the Veteran’s sworn testimony, statements shows that his sinus condition began during service and have been recurrent since that time. See BVA hearing transcript (January 2020). The Veteran is competent to report his sinus condition that began in service and the Board finds the Veteran’s statements credible. See 38 C.F.R. § 3.159 (a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno. The Board finds that the medical and lay evidence is consistent with other evidence of record, and further finds that it is competent and credible. The Board finds that the evidence, including the Veteran’s sworn testimony, shows that the Veteran’s sinus condition had its onset in service and have been recurrent since that time. Resolving all reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s sinus condition had its onset during his period of military service. As such, service connection is warranted. See 38 C.F.R. § 3.303(a). STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Alvarado- 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.