Citation Nr: 21031059 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 17-02 129 DATE: May 20, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. Affording the Veteran the benefit of the doubt, her current bilateral hearing loss symptoms began during her active service. 2. Affording the Veteran the benefit of the doubt, her current tinnitus symptoms began during her active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 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 December 1964 to August 1966. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in December 2018 and October 2020, at which times it was remanded for further development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). The Veteran has not raised any issues in the current appeal that are not discussed herein, nor have any other issues been reasonably raised by the record. Doucette v. Shulkin, 28 Vet. App. 366 (2017). Service Connection Service connection is granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence of: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as "chronic" in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Sensorineural hearing loss is a "chronic disease" listed under 38 C.F.R. § 3.309(a). Therefore, the presumptive service connection provisions of 38 C.F.R. § 3.303(b) apply to the Veteran's claim for service connection to bilateral hearing loss. When all evidence is assembled, VA must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case the claim is denied. Gilbert v. Derwinski 1 Vet. App. 49 (1990). Bilateral hearing loss Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) 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. In the current appeal, the Veteran contends that she has bilateral hearing loss related to her military service, when she was exposed to rifle fire and loud noises from a printing press for an on-base newspaper. See May 2016 Notice of Disagreement (NOD) and March 2016 VA Examination. She describes bilateral hearing loss since service, and her statements are credible and consistent with her service. The Board has no reason to doubt the credibility of her statements and concludes that there has been continuity of hearing loss symptoms since service. 38 C.F.R. § 3.303(b). The Veteran has a current diagnosis of bilateral hearing loss per 38 C.F.R. § 3.385, as shown on her March 2016 VA examination. Sensorineural hearing loss was indicated on that examination with speech discrimination scores of 68 percent in the right ear and 88 percent in the left ear. In the March 2016 VA examination report, the examiner indicated that a medical opinion could not be provided addressing the etiology of the Veteran's bilateral hearing loss without resorting to speculation. The examiner indicated that the medical records did not provide enough information to formulate an opinion. The examiner recorded the Veteran's reports of in-service noise exposure from rifle fire and the printing press but did not address these reports in explaining why an opinion could not be provided. Following the December 2018 and October 2020 Board remands, an additional VA examination was obtained in January 2021. The examiner opined that the Veteran's bilateral hearing loss was less likely than not related to her service because her in service hearing tests and other examinations in her service treatment records (STRs) did not include reports of hearing loss. The examiner noted that the Veteran reported the onset of her hearing loss was between 1966 (when she separated from service) and 1968 and that her in-service noise exposure is conceded. In addition to relying on the absence of documented hearing loss complaints in the Veteran's STRs, the examiner suggested that the Veteran had post-service exposure to recreational and occupational noise and that there was no evidence to support a nexus between the Veteran's current hearing loss and her military service. The January 2021 negative nexus opinion is of little probative value, as the examiner appears not to have taken the Veteran's lay statements about her noise exposure into account in providing a negative opinion. The examiner instead relied on the absence of documented hearing loss in service in providing a negative opinion. In this regard, the Board points out that the absence of a hearing loss disability in service is not in and of itself fatal to a claim for service connection for hearing loss. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The examiner also pointed to the decades long gap between the Veteran's separation from service and her reports of hearing loss without any consideration to her statements that her hearing loss began in service and that she was not someone who went to the doctor unless something was seriously wrong. Lay evidence, when credible, is competent to establish the presence of continuity of symptomology for a claimed disability during and since separation from active service. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). As the evidence of record in the current appeal reflects acoustic trauma in service as well as the Veteran's competent and credible assertions of the onset of hearing loss symptoms in service continuing to the present, the evidence is at least evenly balanced in showing that her current bilateral hearing loss onset during service. Thus, the Board resolves all reasonable doubt in the Veteran's favor. As the evidence is in relative equipoise, the benefit-of-the-doubt rule applies, and entitlement to service connection for bilateral hearing loss is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Tinnitus Tinnitus is a type of disorder associated with symptoms that are uniquely capable of lay observation. Charles v. Principi, 16 Vet. App. 370 (2002). The primary role of the Board in adjudicating a tinnitus claim is to assess the credibility of the Veteran's statements. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran contends that she has tinnitus as a result of her military service, when she was exposed to rifle fire and loud noises from a printing press. As noted earlier herein, the Veteran was exposed to acoustic trauma during service, and in-service noise exposure is therefore conceded. She describes ringing in her ears for years and notes that these problems began in service. She also asserts that this symptomatology is still present today in both ears. The Board finds that the Veteran's statements as to the onset, and continuity, of her tinnitus are credible and that her statements alone are sufficient to establish the criteria for service connection for tinnitus. The Board concedes her exposure to hazardous noise during her active duty as previously noted herein. As such, the in service event element of her claim for service connection for tinnitus is met. In reaching this conclusion, the Board acknowledges that the January 2021 VA examiner provided a negative etiology opinion for the Veteran's tinnitus. Specifically, the examiner opined it was less likely than not related to the Veteran's military service because there were no complaints of, or treatment for, tinnitus in her STRs. Significantly, however, the examiner appeared not to have considered the Veteran's reports that her recurrent tinnitus onset during service and that she was exposed to loud noises from the rifle range and printing press. Tinnitus symptoms are uniquely capable of lay observation. The Veteran's lay statements as to when she experienced the onset of tinnitus symptoms are clearly (CONTINUED ON NEXT PAGE) more probative than the opinion of a medical examiner attempting to determine speculatively what the Veteran would have personally experienced decades ago. The probative evidence supports this claim. Accordingly, service connection for tinnitus is granted. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Goreham 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.