Citation Nr: 21024473 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 20-12 896 DATE: April 22, 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 doubt in favor of the Veteran, his bilateral hearing loss was caused by or incurred in service. 2. Resolving all doubt in favor of the Veteran, his tinnitus was caused by or incurred in service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 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. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from July 1967 to February 1969. On appeal is a January 2019 rating decision denying service connection that denied bilateral hearing loss and tinnitus. 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131 ; 38 C.F.R. § 3.303(a). 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. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection for certain chronic diseases, including sensorineural hearing loss and tinnitus, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the purposes of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of those frequencies 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. It has been established that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a medical relationship between the Veteran’s in-service exposure to loud noise and current disability. See Hensley v. Brown, 5 Vet. App. 155 (1993). The Board notes that the directives in Hensley are consistent with 38 C.F.R. § 3.303(d). In relevant part, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit has held that “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d at 1337 (“[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence”); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (lay testimony is competent to establish the presence of observable symptomatology). Once evidence is determined to be competent, the Board must then determine whether such evidence is also credible. See Layno, 6 Vet. App. at 469 (distinguishing between competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”)). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). A December 2018 VA examination found the Veteran had bilateral sensorineural hearing loss and tinnitus. The first Holton element, that of a current disability, is therefore met. The Veteran contends that his current hearing loss and tinnitus are attributable to hazardous noise exposure he experienced while serving on active duty. The Veteran’s DD Form 214 indicates that his military occupational specialty was personnel specialist. The Veteran testified during the February 2021 hearing before the undersigned that he was exposed to constant noise from diesel engines as well as rifle and mortar fire. The Board has no reason to doubt the Veteran’s credibility and as such, his in-service exposure to acoustic trauma is conceded, and the second Holton element, that of an in-service occurrence, is also met. The Board now turns to the question of nexus. A December 2018 VA examination found the Veteran’s bilateral sensorineural hearing loss was less likely than not caused by or a result of an event in military service. The rationale for the opinion stated the Veteran’s documented MOS was personnel Clerk/Specialist, a job with low probability of hazardous noise exposure. The examiner also stated that although the Veteran described the explosion of a mortar round inside the sleeping tent in Vietnam and multiple rounds surrounding the compound, the Veteran did not experience combat. Furthermore, the examiner noted the Veteran’s pre-induction evaluation indicated normal hearing in both ears with no evidence or indication of auditory trauma and the Veteran did not report experiencing hearing loss or tinnitus while in service. According to the examiner there was no indication or report of abnormal hearing at separation from the military, there is no evidence in the record that the Veteran sustained noise injuries, and there is no basis to conclude his hearing loss was causally related to military service. Moreover, the examiner noted the Institute of Medicine has reported, based on current understanding of auditory physiology, that hearing loss from noise injuries occurs immediately following exposure, and that there is no scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after such noise exposure. Therefore, the examiner found that there is no scientific basis on which to conclude that the current hearing loss was caused by or the result of military service, to include military noise exposure. The December 2018 VA examination also found the Veteran’s tinnitus was less likely than not related to service. The rationale for the opinion stated that the Veteran had normal hearing, bilaterally, on separation from military service. The examiner also noted that his documented MOS was personnel specialist/clerk, which is rated as having a low probability of hazardous noise exposure, and that the Veteran was non-combat. Therefore, the examiner concluded that there are no objective factors for which the etiology of tinnitus could be attributed. The examiner noted that the Veteran’s service treatment records do not contain complaints, treatment, or diagnosis for the condition and that his current hearing loss is not due to or aggravated by military noise exposure. The current complaint of tinnitus is not a result of or aggravation of military noise exposure since tinnitus is more likely as not found in association with hearing loss, which the Veteran did not exhibit or share concerns of during service. In the Veteran’s 2018 statement in support of claim, he stated that he was in charge of a platoon while deployed and for several months artillery in the compound definitely affected his hearing and caused ringing in his ears. December 2020 private audiologist’s records show the Veteran had hearing loss bilaterally. The audiologist described the type of noise the Veteran would have experienced during the military and opined that it was at least as likely as not that the Veteran’s bilateral hearing loss and tinnitus are caused by or a result of his noise exposure within the Army. At a February 2021 Board hearing, the Veteran testified that he did not have hearing loss or tinnitus prior to serving in the military. He recounted his service in Vietnam that involved working as a Marine engineer or mechanic on boats fixing diesel engines. Additionally, he stated that on the boats there were machine guns and grenade launchers. The Veteran testified he first noticed he was experiencing hearing loss when he was exposed to mortars and explosions in service that left his ears ringing. He described the hearing loss he experienced after getting out of the Army until today as having to ask people to repeat themselves all the time, turning up the TV, and trouble understanding his sons. The Veteran testified he has maintained a banking job since service where he has not been exposed to high levels of noise, but his hearing has gotten worse since service. He described ringing of the ears as a “real sharp whistling noise” that goes on constantly and affects his sleep. He testified he did not have any ringing of the ears prior to service but has dealt with it ever sense. In adjudicating this claim, the Board must assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). The Board must also assess the credibility, and therefore the probative value, of the evidence of record in its whole. Owens v. Brown, 7 Vet. App. 429 (1995). In determining whether documents submitted by a Veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). As an initial matter, the Board notes that difficulty hearing and ringing in the ears are the types of symptoms that are readily amenable to lay observation as they are subjective to the claimant. Thus, the Veteran is competent to report his symptoms and their frequency. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Several pieces of evidence of record note the Veteran’s continued reports detailing his hearing loss and tinnitus and his contention that he was exposed to acoustic trauma in service. Nothing in the record contradicts his statements, and his statements are generally consistent with the circumstances of his service. The Board finds the Veteran’s statements are credible and probative. Upon review of the record, the Board finds that the most probative evidence of record establishes that the Veteran’s hearing loss and tinnitus are related to his active service. The Veteran’s STRs reveal that he had normal hearing during his service for VA compensation purposes. However, the Veteran has consistently stated that his tinnitus and hearing loss began in service. The Board finds that the Veteran, as a lay person, is competent to testify to having been exposed to loud noises during service and experiencing decreased hearing acuity and symptoms of tinnitus during service and thereafter. See Layno v. Brown, 6 Vet. App. at 470. Moreover, there is no evidence to doubt his credibility. The Veteran’s statements also reflect a continuity of symptomatology of hearing loss and tinnitus since service. Accordingly, the Board assigns great probative weight to the Veteran’s statements regarding the inception and persistence of his hearing loss and tinnitus. 38 C.F.R. § 3.303(b). While the December 2018 VA examiner’s opinion noted that the Veteran did not experience combat, the examiner failed to consider the Veteran’s exposure to acoustic trauma in other in-service scenarios. In support of the opinion that the Veteran’s hearing loss and tinnitus are related to service, the examiner’s rationale primarily relied on the Veteran’s MOS as being less likely to be exposed to high noise levels and an absence of hearing complaints in service to support the opinion. The Board finds that this rationale is insufficient in light of the holding in Hensley v. Brown, 5 Vet. App. 155 (1993). In Hensley, the United States Court of Appeals for Veterans Claims held that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing loss disability merely because a Veteran’s hearing was found to be within normal limits on audiometric testing at his or her separation from service. Accordingly, the Board assigns less probative weight to the December 2018 VA examiner’s opinion. (Continued on the next page) The Board finds the December 2020 private audiologist’s opinion that the Veteran’s hearing loss and tinnitus are related to service to be probative. This opinion is based on a review of the record and contains fully articulated and sound reasoning for the conclusions provided. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As discussed above, the Board also finds the Veteran’s testimony regarding the in-service incurrence of both hearing loss, and continuing symptoms of both difficulty hearing and ringing in the ears in the years since service, both competent and credible. As such, based on the most probative evidence of record and affording any benefit of the doubt to the Veteran, the Board finds that the Veteran’s bilateral hearing loss and tinnitus are related to his active service. Therefore, service connection for bilateral hearing loss and tinnitus is warranted. Caroline B. Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.N. Bush, 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.