Citation Nr: 21027440 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 16-21 897 DATE: May 5, 2021 ORDER Service connection for tinnitus is granted. Service connection for bilateral hearing loss is granted. FINDINGS OF FACT 1. The evidence is at least in equipoise that the Veteran's current tinnitus condition was incurred during active service and has continued since active service. 2. The evidence is at least in equipoise that the Veteran's current bilateral hearing loss disability for VA purposes is related to his in-service traumatic noise exposure. CONCLUSIONS OF LAW 1. 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. 2. 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, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from September 1970 to August 1976. This appeal comes before the Board of Veterans' Appeals (Board) from a June 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In February 2019, the Veteran testified at a video conference hearing in the Portland RO before the undersigned Veterans Law Judge sitting at the Central Office in Washington, D.C. A transcript of the hearing is available in the record. This matter has previously come before the Board. In September 2019, the Board remanded this issue for a medical opinion to be rendered by VA regarding conflicting medical opinions of record. In November 2019, such an opinion was rendered by a VA audiologist, and thereafter associated with the claim file. Thus, the Board finds that its remand instructions were substantially complied with. Stegall v. West, 11 Vet. App. 268 (1998). After a July 2020 supplemental statement of the case, the Veteran submitted another VA Form 9 and requested another Board hearing. However, as this decision represents a full grant of the service connection benefits sought on appeal, the Board finds no prejudice in proceeding without a second hearing and issuing this decision. Service Connection 1. Entitlement to service connection for tinnitus is granted. The Veteran seeks entitlement to service connection for tinnitus, arguing that his condition originated during service due to military noise exposure. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must generally be 1) evidence of a current disability; 2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and 3) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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 benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Service connection may be established for a current disability on the basis of a presumption that certain chronic diseases, to include organic diseases of the nervous system, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For organic diseases of the nervous system, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3). If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331, 1336-38 (2013). Continuity of symptomatology requires the chronic disease to have manifested in service. 38 C.F.R. § 3.303(b). In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay 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). Tinnitus is an organic disease of the nervous system, and as such is an enumerated chronic disease for which presumptive service connection may be granted. See Fountain v. McDonald, 27 Vet. App. 258, 271 (2015); 38 C.F.R. § 3.309(a). The Veteran has reported a history of recurrent ringing tinnitus that onset during his active service and has continued since service. See February 2019 Hearing Transcript. The Veteran was a naval aviator. He reports frequent noise exposure on the flight line, as well as from having personal living quarters on an aircraft carrier immediately below the flight deck, which exposed him to frequent traumatic noise so loud he could not hear a conversation in his room. Id. A June 2015 VA examiner reviewed the Veteran's claim file and conducted an in-person examination, diagnosing bilateral hearing loss and tinnitus. The examiner documented the Veteran's reports of constant bilateral ringing in his ears since the late 1970s or early 1980s without a precise date of onset. The examiner wrote an opinion that it was less likely than not (less than 50 percent probability) that the Veteran's tinnitus was caused by military noise exposure, based on no reports of tinnitus documented in the Veteran's service records. The examiner also indicated the Veteran's tinnitus appeared to coincide with his bilateral hearing loss, which was not documented until 1985 to 1987. See June 2015 Compensation and Pension (C&P) Examination. However, the examiner did not address the Veteran's reports that he had experienced ringing in his ears during and since his active service. The Veteran is competent to identify tinnitus, as this condition is observable by his own senses, and to report a continuity of symptomatology. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Board finds no reason to doubt the Veteran's credibility in this matter. As such, and resolving any doubt in favor of the Veteran, the Board finds that the Veteran's reports of recurrent tinnitus since active service are sufficient to establish continuity of symptomatology since service. The Veteran's credible lay statements hold higher probative value than the examiner's opinion, which did not address his statements regarding onset of tinnitus during service. Accordingly, all elements of service connection are established by competent and credible evidence, and the claim for service connection for tinnitus is granted. 38 C.F.R. § 3.102, 3.303, 3.307, 3.309. 2. Entitlement to service connection for bilateral hearing loss is granted. The Veteran seeks entitlement to service connection for bilateral hearing loss. The Veteran's present diagnosis of bilateral hearing loss satisfies the first Shedden requirement for service connection per 38 C.F.R. § 3.385. See June 2015 C&P Examination. The Veteran's service treatment records do not show a diagnosis of hearing loss during his military service. However, comparison of various hearing tests throughout his period of service generally show a gradual decrease in his hearing levels during active service. See Service Treatment Records Medical. To that extent, the second Shedden requirement of an in-service incurrence or aggravation of a disease or injury is satisfied. The third Shedden requirement is for a link, or causal connection, between the present diagnosis and the in-service injury or incurrence. To this point, the Board finds conflicting evidence in the record. The June 2015 VA Examiner wrote an opinion that the Veteran's bilateral hearing loss was less likely than not (less than 50 percent probability) related to his in-service acoustic trauma. Although the Veteran's service records showed a threshold shift between his entry to service and discharge, the examiner observed multiple hearing examinations from 1979 to 1985 during the Veteran's reserve period of service in which his hearing was still generally within normal ranges. Therefore, there was no historical evidence to support that the Veteran's disability was incurred in or aggravated during active service. See June 2015 C&P Examination. In February 2019, the Veteran provided a letter written by his private treating audiologist. She wrote that damaging effects on the ears from noise can take place gradually over time, and research has shown that noise exposure can cause delayed or progressive nerve degeneration of the inner ear. Therefore, she provided an opinion that the high levels of noise the Veteran was exposed to as a naval aviator contributed to his hearing loss. See February 2019 Medical Treatment Record Non-Government Facility. Following a Board remand, a VA audiologist wrote an opinion based on records review of the Veteran's claim file, addressing the conflicting medical evidence. The VA examiner indicated that the research cited by the private examiner was not a full representation of the body of scientific research on delayed-onset hearing loss, and the examiner cited additional studies noting it is not conclusive that noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of noise exposure. The VA examiner therefore disagreed with the opinion proffered by the Veteran's private audiologist. See December 2019 C&P Examination. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). Here, the Board finds the conflicting medical opinions to be in relative equipoise. The first VA examiner rationalized that the Veteran's hearing degradation during service did not rise to the level of a disability until years later, and therefore such disability could not be attributed to his in-service noise trauma. The Veteran's private audiologist attributed the Veteran's condition to his in-service noise trauma. Although the 2019 VA medical opinion took issue with the private examiner's conclusions, the Board finds each examiner relied on sound medical practice, and the conflicting opinions effectively counterbalance. The evidence is thus at least in equipoise that the Veteran's present bilateral hearing loss condition is related to his in-service traumatic noise exposure. Resolving reasonable doubt in favor of the Veteran, the third Shedden requirement is satisfied. Based on the foregoing, and with all reasonable doubt resolved in favor of the Veteran, service connection for bilateral hearing loss is warranted. 38 U.S.C. § 5107(b) . Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Hermsdorfer, 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.