Citation Nr: 21029132 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 18-46 389 DATE: May 12, 2021 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. Service connection for right lower extremity radiculopathy is granted. Service connection for left lower extremity radiculopathy is granted. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss was as likely as not incurred within one year of his separation from service. 2. The Veteran's tinnitus was as likely as not incurred within one year of his separation from service. 3. The Veteran's right lower extremity radiculopathy is proximately due to his service-connected low back disability. 4. The Veteran's left lower extremity radiculopathy is proximately due to his service-connected low back disability. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. With resolution of reasonable doubt in the Veteran's favor, the criteria for entitlement to 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. 3. The criteria for service connection for right lower extremity radiculopathy are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 4. The criteria for service connection for left lower extremity radiculopathy are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1982 to September 1986 and from October 1990 to July 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge in January 2021. A transcript of the hearing is of record. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 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). 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 C.F.R. §§ 3.309. In addition, for secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury, or that service-connected disease or injury has aggravated the nonservice-connected disability for which service connection is sought. See 38 C.F.R. § 3.310. 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. 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. Alemany v. Brown, 9 Vet. App. 518 (1996). Bilateral Hearing Loss and Tinnitus Certain chronic diseases are subject to a grant of service connection on a presumptive basis when present to a compensable degree within the first post-service year, including organic diseases of the nervous system 38 C.F.R. §§ 3.307, 3.309(a). Hearing loss and tinnitus are classified as organic diseases of the nervous system. See Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). 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 claimant's separation from service. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013). For VA purposes, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz ("the relevant frequencies") is 40 decibels or greater; or when the auditory thresholds for at least three of the relevant frequencies 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 Veteran currently has bilateral hearing loss constituting a disability for VA purposes and has been diagnosed with tinnitus, as reflected in the report of the September 2015 VA examiner. VA treatment records confirm the tinnitus diagnosis. The Veteran contends that his hearing loss and tinnitus were incurred as a result of his duties as a sonar technician. Military personnel records reflect that the Veteran's duties included service as a sonar technician and service treatment records (STRs) reflect that the Veteran was "routinely exposed to hazardous noise." The Veteran is thus able to establish exposure to military noise. The September 2015 VA examiner opined that the Veteran's bilateral hearing loss and tinnitus were less likely than not related to service because there were no significant threshold shifts when comparing the enlistment examination and the separation examination. According to the examiner, any hearing loss noted during audiograms in service was transient in nature. The examiner concluded there was no objective evidence of acoustic trauma in either ear and concluded that the Veteran's hearing loss and tinnitus were more than likely impacted by civilian noise exposure, presbycusis and/or "some other etiology." The Board finds the opinion of the September 2015 VA examiner inadequate to decide the claims for service connection for bilateral hearing loss and tinnitus. The examiner improperly relied on the absence of an in-service hearing disability, which is not always fatal to service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The examiner also failed to address or consider the Veteran's statements regarding his exposure to hazardous noise in service or his contentions that he experienced hearing loss and tinnitus within a year following his discharge from active service. Based on these deficiencies, the negative nexus opinion offered by the September 2015 VA examiner is not entitled to probative weight. The Veteran testified at the Board hearing that he first noticed his hearing loss shortly after service and that he failed hearing tests taken in connection with his civilian employment that were taken "shortly after service." The Veteran specifically noted that the hearing loss occurred within a year of his release from active duty. The Veteran's wife also testified that she noticed the Veteran's hearing loss "right after he got out" and that it has gotten progressively worse. The Veteran reported to the VA examiner that the onset of his tinnitus was "20 years ago" and testified that he first noticed the constant ringing within a year after his discharge from active service. The Veteran also testified that he continues to experience constant ringing in his ears. The Veteran and his spouse are competent to report the onset and continuity of the Veteran's symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge); Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Board finds the Veteran's competent statements regarding the onset of his bilateral hearing loss and tinnitus within a yar of separation from service to be credible. As noted, the Veteran and his spouse specifically testified that his hearing loss started within a year after separation of service. The Veteran's statements regarding the onset of tinnitus coincide with an onset either during service or within a year after separation. Further, the statements also amount to evidence of continuity of symptomatology, which would warrant consideration of 38 C.F.R. § 3.303(b), as well as the presumptive provisions of 38 C.F.R. §§ 3.307 and 3.309(a). As such, the evidence is at least in equipoise as to whether the Veteran's bilateral hearing loss and tinnitus are related to his active service. Affording him the benefit of the doubt, the Board finds that the Veteran's current bilateral hearing loss and tinnitus started within a year of his discharge from active service and the claims for service connection are granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Bilateral lower extremity radiculopathy VA and private treatment records reflect that the Veteran has bilateral radiculopathy associated with his service-connected low back disability. Specifically, the July 2019 VA examination for the Veteran's service-connected low back disability included right-sided radiculopathy symptoms. A February 2019 private physical therapy treatment record noted radicular symptoms. A March 2020 VA treatment record noted bilateral lumbar radiculopathy as part of the Veteran's medical history. Electrodiagnostic studies conducted in January 2019 and March 2021 confirmed the existence of bilateral radiculopathy. An April 2019 private Disability Benefits Questionnaire (DBQ) also documented the Veteran's bilateral lumbar radiculopathy. Given the consistent diagnoses of bilateral radiculopathy associated with the Veteran's service-connected low back disability, service connection is warranted for bilateral lower radiculopathy. The findings in the treatment records, VA examination and DBQ are demonstrative of an etiological relationship between the Veteran's low back disability and his bilateral lower extremity radiculopathy. Resolving doubt in the Veteran's favor, the claims of entitlement to service connection for bilateral lower extremity radiculopathy are granted. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. § 3.102. S.C. KREMBS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Snyder, 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.