Citation Nr: 21030473 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 17-36 201 DATE: May 19, 2021 ORDER Entitlement to service connection for bilateral sensorineural hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran's bilateral sensorineural hearing loss began in service and has continued since then. 2. The Veteran's tinnitus began in service and has continued since then. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral sensorineural hearing loss 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 tinnitus are 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 in the United States Navy from December 1965 to December 1967, with two tours of service in Vietnam. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in a Virtual Hearing in May 2021. Service Connection Service connection will be granted if it is shown that a Veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. "To establish a right to compensation for a present disability, a veteran must show: '(1) the existence of a present disability; (2) 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. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In certain cases, competent lay evidence may demonstrate the presence of any of these elements. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The nexus element may also be fulfilled by (1) a nexus opinion or (2) competent and credible evidence showing that the veteran has experienced frequent and persistent symptoms of the disease since service. 38 U.S.C. § 1154(a); 38 C.F.R. §§ 3.303(a), (d); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served for at least 90 days during a period of war and manifests an organic disease of the nervous system to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. Sensorineural hearing loss and tinnitus are included in the list of organic diseases of the nervous system. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. The presumption for chronic diseases relaxes the evidentiary requirements for establishing entitlement to service connection. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012) (holding that "[t]he clear purpose of [subsection 3.303(b)] is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases" and only applies to the chronic diseases set forth in § 3.309(a)). Specifically, § 3.303(b) provides that when a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes"). If the evidence is not sufficient to show that the disease was chronic at the time of service, then the claim may be established with evidence of a continuity of symptoms after service, which is a distinct and lesser evidentiary burden than the nexus element of the three-part test under Shedden. Walker, 708 F.3d at 1338; C.F.R. § 3.303(b). Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during a] presumptive period." The provisions of subsection 3.303(b) for chronic diseases apply in this case and therefore the claim may be established with evidence of chronicity in service or a continuity of symptomatology after service. See Walker, 708 F.3d at 1338-1339. For claims for service connection for hearing loss or impairment, VA has specifically defined what is meant by a disability for the purposes of service connection. Impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. Of note, the absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability, i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above, and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). 1. Entitlement to service connection for bilateral sensorineural hearing loss As an initial matter, the Veteran has a current diagnosis of bilateral sensorineural hearing loss for VA purposes as seen in the January 2016 VA Hearing Loss and Tinnitus examination. Turning to the in-service incurrence of injury, the Board notes that VA has conceded in-service exposure to excessive noise due to the Veteran's military occupational specialty (MOS) of carpenter, see January 2016 VA examination, see also DD-214. In addition, the Board finds that the Veteran's testimony regarding his exposure to excessive noise from bridge construction, without hearing protection, during two tours in Vietnam is competent, credible, and therefore probative. Thus, the first two elements required for service connection are met. Addressing the nexus requirement, the Board notes that the Veteran has competently and credibly testified that he experienced hearing loss in service and that it has continued ever since then. The Board notes that a layperson is competent to report on the onset and continuity of his or her current symptomatology. See 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). When considering whether lay evidence is competent, the Board must determine on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Here, the Board finds that the Veteran is competent to report the onset and continuation of his hearing loss symptoms and the Board finds his testimony and lay statements credible, and therefore, probative. 38 C.F.R. § 3.304(d); see Charles v. Principi, 16 Vet. App. 370, 374 (2002); see also Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board observes that the January 2016 VA examiner opined that the Veteran's hearing loss was not due to his military service. The examiner conceded the in-service noise exposure, and noted that there were no entrance or separation audiograms in the veteran's service treatment records. For his rationale he relied on a 2006 Institute of Medicine (IOM) report entitled "Noise and Military Service-Implications for Hearing Loss and Tinnitus" which found that noise-induced hearing loss occurs immediately and there is no scientific support for delayed onset noise-induced hearing loss. However, the United States Court of Appeals for Veterans Claims (Court) held in McCray v. Wilkie, 31 Vet. App. 243 (2019) that this IOM report contains qualifying or contradictory aspects that affects the probative value and adequacy of any ensuing medical opinion that relies on the text. Moreover, the Board notes that for an opinion to be adequate, it must include consideration of the Veteran's statements, be based on accurate factual premises, and contain a rationale sufficient to support its conclusions. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As this negative nexus opinion does not adequately consider the Veteran's statements and wholly relied on the IOM report regarding delayed onset of hearing loss, the Board assigns it no probative value. Accordingly, as the probative evidence of record shows that the Veteran's bilateral sensorineural hearing loss, a chronic disease, began in service and has continued since then, service connection is warranted. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); 38 C.F.R. § 3.303. 3.307, 3.309. 2. Entitlement to service connection for tinnitus As an initial matter, the Board notes that the Veteran is competent to report intermittent recurrent tinnitus. Charles v. Principi, 16 Vet. App. 370 (2002). In addition, the January 2016 VA examiner and a November 2016 private examination diagnosed the Veteran with tinnitus, described as intermittent ringing. Moreover, in-service noise exposure has been conceded, thus the first two elements for service connection are met. With respect to a nexus for the Veteran's tinnitus, the Veteran competently and credibly testified that he has experienced tinnitus since service. He further testified that he has had to run a fan all night long to help with his tinnitus. The Board finds that this evidence is probative. See 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). The Board notes that the VA examiner stated that he could not provide a nexus opinion without resorting to speculation, thus, no negative nexus opinion is of record. Based on the probative evidence of record, the Board finds that continuity of symptomology is shown for the Veteran's tinnitus. Accordingly, the Board finds that the elements for service connection for tinnitus have been met and service connection for tinnitus is warranted. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); 38 C.F.R. § 3.303. 3.307, 3.309. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Nelson 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.