Citation Nr: 21029596 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 18-49 989 DATE: May 14, 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 the Veteran's favor, his bilateral hearing loss developed as a result of in-service noise exposure. 2. Resolving all reasonable doubt in the Veteran's favor, his tinnitus developed as a result of in-service noise exposure. 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 served on active duty in the United States Army from November 1969 to May 1972. On appeal is a February 2018 rating decision of the VA Regional Office (RO) that denied service connection for bilateral hearing loss and tinnitus. The Veteran testified at a Board videoconference hearing in March 2021 before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. Service Connection 1. Entitlement to service connection for bilateral hearing loss is granted. 2. Entitlement to service connection for tinnitus is granted. 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) an 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). The Veteran's service treatment records are negative for hearing loss and tinnitus. The Veteran's April 1972 separation examination is silent for hearing loss or tinnitus. A VA examination took place in January 2018 to evaluate the Veteran's claimed hearing loss and tinnitus. The examiner diagnosed the Veteran with bilateral sensorineural hearing loss. The examiner opined that the Veteran's bilateral hearing loss was less likely than not caused by or the result of service. The VA examiner noted that in-service noise exposure had not been conceded. However, the VA examiner cited the Veteran's 27 years of significant occupational noise exposure in the oil fields. Accordingly, the examiner opined the Veteran's hearing loss and tinnitus were more likely than not secondary to his post-military discharge history of significant occupational noise exposure. In a March 2021 hearing before the undersigned, the Veteran offered testimony in support of his claims for service connection for hearing loss and tinnitus. There, the Veteran testified that while his DD-214 classified him as personnel serving as company clerk, his first duty was with the 1st and 26th infantry as light weaponist which has a high probability for hearing loss. The Veteran further testified he was exposed to gun fire, grenades, and military aircraft in Vietnam. Specifically, the Veteran testified to an incident that entailed close exposure to a hand grenade in his bunker. The Veteran stated his ears hurt after the detonation for four or five months. The Veteran testified that while the pain subsided, he started getting ringing in his ears that has persisted ever since. The Veteran stated the ringing had progressively worsened since service. Separate from his tinnitus, the Veteran testified he has had issues with hearing for a long time. The Veteran stated his wife would say his hearing has always been that way, but his hearing loss has become worse in the two years before the hearing. The Veteran testified, contrary to the VA examiner's opinion, that his job working for an oil company following service did not expose him to high levels of noise, and the loudest thing he probably experienced was listening to the radio. Additionally, he stated he was required to wear hearing protection during his time working for the oil company post service. While the 2018 VA examiner opined the Veteran's hearing loss was due to work he had done after service, the Veteran felt this conclusion relied an inaccurate depiction of his experience. Upon review of the record, the Board finds that the most probative evidence of record establishes that the Veteran's bilateral 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 disability purposes. However, the Board has carefully reviewed the Veteran's statements of record. The Veteran stated that he was exposed to loud noises from a grenade explosion and gunfire. 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 tinnitus. See Layno, 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. 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). Although the January 2018 VA examination confirmed a current diagnosis for bilateral hearing loss and tinnitus, the examiner opined that hearing loss and tinnitus are not caused by service. The examiner provided an opinion based on a legally insufficient rationale. One of the examiner's reasons for the lack of a positive nexus opinion is that the Veteran's induction audiogram and release from active duty audiogram showed no significant decline or shift in hearing sensitivity, and that military noise exposure had not been conceded. However, the Veteran did report to the examiner that he was exposed to machine gun fire and grenades without hearing protection devices in service and that he began to experience tinnitus and hearing loss during service. In Hensley v. Brown, the Court held that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability merely because hearing was within normal limits on audiometric testing in service. Therefore, the Board finds that the January 2018 VA opinion is inadequate with respect to the question of nexus because the examiner did not address the Veteran's in-service noise exposure and inaccurately characterized the Veteran's occupational noise exposure post-service. Accordingly, the Board assigns less probative weight to the opinion. As such, based on the most probative evidence of record, 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.