Citation Nr: 21029386 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 16-43 632 DATE: May 13, 2021 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for bilateral hearing loss is granted. FINDINGS OF FACT 1. Resolving all reasonable doubt in favor of the Veteran, the Veteran's tinnitus first manifested in service and has been continuous since. 2. Resolving all reasonable doubt in favor of the Veteran, the Veteran's bilateral hearing loss is etiologically related to his active duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from August 1966 to August 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. These matters were previously before the Board in November 2018, where they were remanded for further development. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Service Connection Generally, to prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Certain "chronic diseases" may be presumed to have been incurred in service if they manifest to a compensable degree within one year of separation from service; however, if the evidence of the record is insufficient to establish a disease was chronic in service, and/or manifested within the specified time period, then there must be a continuity of disease symptoms shown after discharge in order to warrant service connection. 38 C.F.R. § 3.303(b). Tinnitus and hearing loss, organic diseases of the nervous system, are a "chronic disease" under 38 C.F.R. § 3.309(a). 1. Entitlement to service connection for tinnitus. The Veteran contends that he currently has tinnitus that had its onset during active service, or is otherwise directly related to the acoustic trauma he experienced on active duty service. After review of the record, the Board finds that service connection for the Veteran's tinnitus is warranted. The record includes findings the Veteran has been diagnosed with recurrent tinnitus, as shown in the May 2015 and August 2019 VA examinations. The Board notes the Veteran's competent and credible reports of exposure to acoustic trauma during active service, specifically, from noise while working as a weapons crewman where he was exposed to engines, explosive blasts, mortar rounds, and gunfire. See Notice of Disagreement (NOD), September 2015. Additionally, the Veteran's military personnel records confirm his military occupation of that of a weapons crewman. See DD214. Therefore, with no evidence to the contrary, and resolving any doubt in favor of the Veteran, the Board finds that in-service noise exposure (acoustic trauma) is conceded. In the May 2015 and August 2019 VA examinations, the examiners noted the Veteran's reports of recurrent tinnitus, with an onset in the military due to noise exposure. However, the examiners provided unfavorable opinions as to this condition being etiologically related to the Veteran's in-service noise exposure due to their being no complaints of tinnitus during service, with hearing being normal at separation with no significant threshold shift. See C&P Examinations, May 2015 and August 2019. The Board finds these opinions to have little, if any, probative weight, as the examiner incorrectly relied on the absence of medical evidence and/or complaints in-service as the primary basis for denial, with no discussion and/or consideration of the Veteran's competent and credible lay statements regarding the nature, onset, and continuity of symptomatology; as well as, failed to discuss the conceded in-service acoustic trauma. Additionally, the Board notes that the examiner's rationale that the Veteran has normal hearing in service is not indicative that tinnitus was not present. Nevertheless, the Board notes that, the Veteran's lay statements regarding the nature and onset of his tinnitus symptoms is sufficient to establish service connection. See 38 C.F.R. § 3.309(a); see also Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). A review of the record reflects that the Veteran has stated that his tinnitus first began during active duty service, which has continued to this day without relief. See VA 21-4138, December 2014. As the Veteran is competent to report his symptoms, the Board finds that the probative evidence of record is in support of the Veteran's claim, or at the very least in relative equipoise, and resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for tinnitus is warranted. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990); 38 U.S.C. § 5107. Accordingly, the claim is granted. 2. Entitlement to service connection for bilateral hearing loss. The Veteran contends that he currently has bilateral hearing loss that had its onset during active service, or is otherwise directly related to the acoustic trauma he experienced on active duty service. After review of the record, the Board finds that service connection for bilateral hearing loss is warranted based on continuity of symptomatology. As an initial matter, the Board notes that the Veteran's service treatment records revealed the Veteran had impaired hearing in the right ear at 500 Hertz during his separation examination in August 1968. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (the Court indicated that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss). The record includes findings the Veteran has a current bilateral hearing loss disability as defined in 38 C.F.R. § 3.385. Hearing loss for VA purposes was demonstrated at the May 2015 and August 2019 VA examinations of record. Additionally, the Board notes the Veteran's competent and credible reports of exposure to acoustic trauma during active service, specifically, from noise while working as a weapons crewman where he was exposed to engines, explosive blasts, mortar rounds, and gunfire. See NOD, September 2015. Furthermore, the Veteran's military personnel records confirm his military occupation of that of a weapons crewman. See DD214. Therefore, with no evidence to the contrary, and resolving any doubt in favor of the Veteran, the Board finds that in-service noise exposure (acoustic trauma) is conceded. In a submitted lay statement from the Veteran, he asserted that his hearing loss began during active duty service and has continued to this day without relief. See VA 21-4138, December 2014. In May 2015 and August 2019, the Veteran was afforded VA examinations to assess the current nature and etiology of his bilateral hearing loss. Upon review of each, the examiners diagnosed the Veteran with bilateral sensorineural hearing loss; however, each provided unfavorable opinions as to the bilateral hearing condition being etiologically related to the Veteran's active service, rationalizing that the Veteran's bilateral hearing was normal during service, with no significant threshold changes, as well as, no complaints of hearing loss shown at separation exam. The Board finds these opinions and rationales to be inadequate for adjudicate purposes, and thus have little, if any, probative value, as the examiners failed to consider the Veteran's competent and credible statements regarding the nature, onset, and continuity of symptomatology. Additionally, the examiners failed to discuss and/or consider the conceded in-service acoustic trauma, or the impaired hearing of the right ear at 500 Hertz shown at separation. Furthermore, the Board notes that the fact that hearing loss was not demonstrated during active duty is not fatal to the Veteran's claim. Indeed, evidence of a current hearing disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection of hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Nevertheless, during the pendency of this appeal, the Veteran has asserted that the onset of his bilateral hearing loss was during his active service, to which his symptoms have continued ever since without relief. Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. See Savage v. Gober, 10 Vet. App. 488, 496 (1997). Lay evidence presented by a Veteran concerning continuity of symptoms after service may generally be considered credible and ultimately competent, regardless of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (2006). In this case, the Veteran is competent and credible to report symptoms that he perceived through his own senses, and the fact that it has been continuous since active service, but these reports must be weighed against the medical evidence of record. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). As mentioned above, the medical evidence of record is not reliable, as the examiners failed to provide adequate etiology opinions, to include proper analysis or consideration of the competent lay evidence of record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Therefore, no adequate medical nexus opinion is of the record, but that is not fatal to the Veteran's claim, as in the present circumstance lay evidence may serve as a basis to establish the service connection claim. See Savage. Thus, the Boards finds the Veteran's lay reports of the onset of his symptoms being in service and continuing since service are competent, credible, and highly probative; and resolving reasonable doubt in favor of the appellant, the claim for service connection for bilateral hearing loss must be granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5207; 38 C.F.R. § 3.102, 3.303(b). DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Hodges, 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.