Citation Nr: 21031319 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 18-34 748 DATE: May 21, 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 the Veteran's favor, his tinnitus is at least as likely as not the result of in-service noise exposure. 2. Resolving all reasonable doubt in favor of the Veteran, the evidence is at least in equipoise that the Veteran's bilateral hearing loss is etiologically related to military noise exposure. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 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 Army from March 1965 to January 1967, including service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (the Board) on appeal from a July 2017 rating decision. In May 2021, the Veteran testified before the undersigned Veterans Law Judge at a virtual tele-hearing. A transcript of this hearing is not yet available. However, this appeal meets the criteria for VA's "one-touch" initiative program; as such, this decision has been prepared pursuant to this program to provide an immediate response to the Veteran after his hearing. A transcript of the hearing will be added to the Veteran's file at a later date in the normal course of business. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires: (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. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic disorders, to include sensorineural hearing loss and tinnitus, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In such cases, the disease is presumed under the law to have had its onset in service even if there is no evidence of such disease during service. 38 C.F.R. § 3.307(a); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker, 708 F.3d at 1331. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. Gilbert, 1 Vet. App. at 53.1. 1. Entitlement to service-connection for tinnitus is granted. The Veteran seeks entitlement to service connection for tinnitus, which he contends was incurred in service due to military noise exposure. The Veteran specifically asserts that he has experienced ringing in his ears ever since service when he was exposed to hazardous noise from explosives, arms fire, mortar fire, live firing exercises, and tank fire often without adequate hearing protection. The Veteran's DD-214 shows that his military occupational specialty (MOS) was indirect fire infantryman, an MOS that is highly probable for noise exposure. As such, VA has conceded exposure to hazardous military noise during service. As an initial matter, the Board notes that the Veteran is competent to describe the nature and extent of his in-service noise exposure. See C.F.R. § 3.159(a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Therefore, based on his lay testimony, the Veteran's exposure to excessive military noise during service is conceded by the Board. Moreover, the Board notes that tinnitus is a type of disability that may be established on the basis of lay evidence alone. Charles v. Principi, 16 Vet. App. 370 (2002). As such, there is no dispute that the Veteran has a current diagnosis of tinnitus. The question remaining before the Board is whether the Veteran's current tinnitus is etiologically related to his in-service noise exposure. Based on a careful review of the subjective and clinical evidence of record, the Board resolves all reasonable doubt in favor of the Veteran and finds that service connection for tinnitus is warranted. The Veteran underwent a VA audiology examination in June 2017. On examination, the Veteran reported a long history of periodic tinnitus, stating that he has experienced symptoms for over forty years. The examiner opined that the Veteran's tinnitus is less likely than not related to military noise exposure. The examiner based this negative opinion on the fact that the Veteran's bilateral hearing was within normal limits on examination, indicating no prior auditory damage, and a lack of documented tinnitus in the service treatment records. The Board finds this medical opinion to be inadequate because the examiner did not take into consideration the Veteran's lay statements regarding the in-service onset and continuity of his symptoms of tinnitus. Therefore, the opinion cannot serve as a basis to deny the Veteran's claim for service connection. The Board acknowledges that the record does not contain an adequate medical opinion with regard to the etiology of the Veteran's tinnitus. Nonetheless, the Board finds that there is sufficient evidence in the record to decide the claim. In the absence of an adequate medical opinion to the contrary, the Board accepts the Veteran's lay statement that his tinnitus had its onset during service and that it has continued ever since. See Layno, 6 Vet. App. at 469-70. Based on the Veteran's competent and credible statements regarding the onset and continuity of his tinnitus symptoms, the Board finds that the evidence is at least in equipoise that the Veteran's tinnitus was caused by his in-service noise exposure. Accordingly, resolving all reasonable doubt in favor of the Veteran, service connection for tinnitus is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. 2. Entitlement to service-connection for bilateral hearing loss is granted. The Veteran seeks entitlement to service connection for bilateral hearing loss, which he contends was incurred in or caused by military noise exposure. The Board has already conceded that the Veteran was exposed to hazardous noise during service in Vietnam where he served as an indirect fire infantryman. The Veteran maintains that his hearing loss began during service and has continued to worsen ever since. The Veteran was diagnosed with bilateral sensorineural hearing loss considered to be disabling for VA purposes during his June 2017 VA audiological examination. 38 C.F.R. § 3.385. Therefore, the question in this case is whether a causal relationship or nexus exists between the Veteran's bilateral hearing loss and military noise exposure. Based on a careful review of the subjective and clinical evidence of record, the Board resolves all reasonable doubt in favor of the Veteran and finds that service connection for bilateral hearing loss is warranted. The Veteran was afforded a VA audiology examination in June 2017. Upon examination, the VA examiner opined that the Veteran's bilateral hearing loss is less likely than not related to military noise exposure, finding that the Veteran had normal hearing bilaterally upon entrance and separation from military service, with no significant threshold shifts and no documented complaints of hearing loss. The examiner also relied on the findings of a 2005 Institute of Medicine (IOM) study to illustrate the unlikelihood of delayed-onset hearing loss. In April 2017, the Veteran submitted a private opinion in support of his claim, opining that the Veteran's bilateral hearing loss was more likely than not related to his time in service. The examiner stated that the Veteran's bilateral hearing loss was consistent with loud noise exposure, and also noted that the Veteran was exposed to loud noise while on active duty. There is no evidence that the opinion is not competent or credible. Moreover, the Board notes that at the May 2021 Board hearing, the Veteran testified that his wife noticed his decreased hearing since shortly after the Veteran's period of active service. Based on the foregoing, the evidence of record supports a finding that the Veteran's bilateral hearing loss is causally related to his active service. The VA opinion is of minimal probative weight as it did not provide adequate consideration the Veteran's competent lay statement of the onset of hearing loss during service and his continuity of symptomatology since. On the other hand, the private opinion links the Veteran's hearing loss to in service noise exposure, and the Veteran's statements both establish that he had noise exposure in service and has had decreased hearing acuity since service. When read together, and in the interest of providing the Veteran with the full benefit of the doubt, the Board finds that the evidence establishes that the current bilateral hearing loss disability is causally related to the Veteran's active service. Therefore, by resolving all reasonable doubt in favor of the Veteran, service connection for a bilateral hearing loss disability is granted. 38 C.F.R. §§ 3.102, 3.303. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Rosenthal, Ariana 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.