Citation Nr: 21027550 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 18-31 099 DATE: May 6, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to an initial disability rating in excess of 30 percent for interstitial lung disease, asbestosis, is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, the probative evidence of record demonstrates the Veteran's bilateral hearing loss is related to noise exposure during his active service. 2. Resolving reasonable doubt in the Veteran's favor, the probative evidence of record demonstrates the Veteran's tinnitus began during his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been 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 tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1958 to January 1962. The Veteran testified at a virtual hearing before the undersigned Veterans Law Judge of the Board of Veterans' Appeals (Board) in January 2021. A transcript of that hearing has been associated with the claims file. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 1. Entitlement to service connection for bilateral hearing loss The Board concludes that the Veteran has a current diagnosis of bilateral sensorineural hearing loss that is related to noise exposure during his active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The Veteran contends that he was exposed to noise from working aircraft carriers during his active service. His DD Form 214 and service personnel records reflect he received aircraft structural mechanic training, served aboard aircraft carriers, and served in fighter squadron eighty four, thereby supporting his statements of exposure to excessive noise from aircrafts during active service. See 38 U.S.C. § 1154. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Baldwin v. West, 13 Vet. App. 1 (1999); see also Dalton v. Nicholson, 21 Vet. App. 23 (2007). Department of Veterans Affairs (VA) medical records, including the January 2017 VA examination, demonstrate the Veteran has a current diagnosis of bilateral sensorineural hearing loss which meets the criteria for a hearing loss disability for VA compensation purposes. 38 C.F.R. § 3.385. Although the January 2017 VA examiner, a licensed audiologist, found the Veteran's bilateral sensorineural hearing loss was less likely than not incurred in or was otherwise related to the Veteran's active service based on the absence of hearing loss in service, the VA examiner failed to address the Veteran's lay statements of a continuity of hearing problems since active service and that he had inadequate hearing protection during active service. The Veteran's statements and testimony of a continuity of hearing problems since active service are competent. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board observes these statements are also credible as they are supported by the service records supporting exposure to excessive noise during active service, private treatment records demonstrating treatment for hearing problems as far back as 1993 and both private and VA medical records demonstrating his consistent reports of military noise exposure from aircrafts while serving on an aircraft carrier. Baldwin v. West, 13 Vet. App. 1 (1999); see also Dalton v. Nicholson, 21 Vet. App. 23 (2007). Taken together, these records, at the very least, place the evidence in a state of relative equipoise as to whether bilateral hearing loss was incurred during the Veteran's active service. Therefore, after resolving all doubt in favor of the Veteran, the Board finds that service connection for bilateral hearing loss is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for tinnitus The Board concludes that the Veteran has a current diagnosis of tinnitus that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). As noted above, the probative evidence of record supports the Veteran's statements of exposure to excessive noise during active service. See 38 U.S.C. § 1154. Although the VA examiner found that the Veteran's tinnitus was less likely than not caused by or a result of military noise exposure, the Board observes the Veteran's testimony in the videoconference hearing regarding his excessive noise exposure in service with less than adequate hearing protection and that he was not aware of when tinnitus began but that its onset was gradual over the years since service are competent and credible evidence of noise exposure during service and that his tinnitus began during his active service and has continued since that time. See Charles v. Principi, 16 Vet. App. 370 (2002); Falzone v. Brown, 8 Vet. App. 398 (1995); see also Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Baldwin v. West, 13 Vet. App. 1 (1999); see also Dalton v. Nicholson, 21 Vet. App. 23 (2007). Taken together, these records, at the very least, place the evidence in a state of relative equipoise as to whether tinnitus was incurred during the Veteran's active service. Therefore, the Board resolves all doubt in favor of the Veteran and finds the probative evidence of record demonstrates he has a current diagnosis of tinnitus that had its onset during active service. Accordingly, service connection for tinnitus is warranted. 38 C.F.R. §§ 3.102, 3.303. 3.307, 3.309. See also 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND 1. Interstitial Lung Disease, Asbestosis Since the last January 2017 VA examination, the Veteran testified in the January 2021 hearing testimony that his asbestosis has gotten worse since that time. Therefore, it is necessary to adequately determine the current severity of the Veteran's interstitial lung disease, asbestosis, and the functional effects of such disability. Snuffer v. Gober, 10 Vet. App. 400 (1997); VAOPCGPREC 11-95 (April 7, 1995); see also 38 C.F.R. § 3.327. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all pertinent VA and private medical records the Veteran adequately identifies. 2. Upon receipt of any additional records, schedule the Veteran for a VA examination of his interstitial lung disease, asbestosis. The claims folder and a copy of this remand are to be made available to and reviewed by the examiner in connection with the examination. The evaluation of the interstitial lung disease, asbestosis, should consist of all necessary testing, including pulmonary function testing. To the extent possible, the examiner should identify any functional effects and functional impairment of the Veteran's interstitial lung disease, asbestosis, on his occupational functioning, daily life, and ordinary activities. It is essential the examiner provide explanatory rationale for opinions on these determinative issues, citing to specific evidence in the file supporting conclusions. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Saira Spicknall, 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.