Citation Nr: 21032036 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 18-15 028 DATE: May 25, 2021 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. FINDINGS OF FACT 1. The current bilateral hearing loss is related to service. 2. Tinnitus originally manifested during service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been approximated. 38 U.S.C. §§ 1110, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. The criteria for service connection for tinnitus have been approximated. 38 U.S.C. §§ 1110, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Air Force from August 1985 to December 1985 and from October 2001 to July 2003 with additional service in the Air National Guard. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A copy of the transcript has been associated with the electronic claims file. Service Connection Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). An organic disease of the nervous system, which includes sensorineural hearing loss and tinnitus, is a "chronic disease" listed under 38 C.F.R. § 3.309(a). Fountain v. McDonald, 27 Vet. App. 258, 275-76 (2015). Therefore, the provisions of 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease as such during active service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless they are clearly attributable to intercurrent causes. Generally, if a condition noted during active service is not shown to be chronic, then, a "continuity of symptoms" after service is required to establish service connection. 38 C.F.R. § 3.303(b). The Veteran is competent to report that tinnitus was incurred in service and it has existed from service to the present. See 38 C.F.R. § 3.159(a)(2); Charles v. Principi, 16 Vet. App. 370, 374 (2002). The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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. The September 2017 VA examination reflected auditory thresholds above 40 decibels at the 3000 and 4000 Hz levels bilaterally and diagnosed tinnitus. Thus, the Veteran has a current disability. The Board notes that the Veteran's service treatment records are silent for any treatment for bilateral hearing loss or tinnitus. Similarly, the service entrance and exit examinations show normal hearing for VA purposes. However, the Veteran has described noise from guarding flight lines and the performance of his inservice job duties. The Veteran's Form DD214 confirms he served as a Security Forces Craftsman and that he received the Small Arms and Rifle Expert Markman Ribbon and that he served in Operation Noble Eagle. As previously stated, the Veteran underwent VA examination in September 2017 to determine the nature and etiology of the hearing loss and tinnitus. As an initial matter, the Board finds the September 2017 inadequate. Specifically, the VA examiner indicated that a medical opinion on the etiology of the hearing loss and tinnitus could not be determined without resorting to speculation, but provided no other rationale. See Barr v. Nicolson, 21 Vet. App. 303, 307 (2007). Next, in an October 2017 VA addendum opinion a VA examiner opined the Veteran's bilateral hearing loss and tinnitus were less likely than not the result of in-service noise exposure. However, because the opinion was based solely on the absence of an inservice diagnosis of bilateral hearing loss and tinnitus it is similarly inadequate. See Barr v., 21 Vet. App. 303, 307 (2007). During the April 2020 Board hearing, the Veteran reported that he first noticed the hearing loss and tinnitus in 2003, towards the end of his period of active duty. Specifically, he reported noise from flight lines during his second period of active service. In April 2020, the Veteran underwent a private examination that confirmed the diagnoses of bilateral hearing loss and tinnitus. The private otolaryngologist opined that both the Veteran's in-service noise exposure significantly contributed to the current bilateral hearing loss and tinnitus. There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim. Specifically, the Board could seek further examination to clarify and definitively opine on the nature and etiology of the current bilateral hearing loss and tinnitus. While the VA examination reports concluded that the Veteran's hearing loss and tinnitus were not related to service, the private audiologist opined that they were. Further, the Veteran has explained that the decreased hearing and tinnitus actually began during service as a result of noise exposure and became progressively worse over time. Given the existence of evidence both for and against the claim, the Board finds that the evidence is in relative equipoise as to whether the Veteran's hearing loss and tinnitus arose during service. Upon resolution of all reasonable doubt in the Veteran's favor, the Board concludes that service connection is now warranted for both hearing loss and tinnitus. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Further, given the favorable outcome in this decision that represents a full grant of the issues on appeal, further explanation of how VA has fulfilled the duties to notify and assist is not necessary. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Teague, Charles 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.