Citation Nr: 21032591 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 17-45 310 DATE: May 27, 2021 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran has a legally cognizable bilateral hearing loss disability; it is at least as likely as not that it was incurred in service. 2. The evidence as to whether the Veteran's tinnitus had its onset in service is at least in equipoise. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for an award of service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. Resolving reasonable doubt in the Veteran's favor, the criteria for an award of service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1154, 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 U.S. Army from February 1969 to February 1971, to include service in Vietnam. His decorations include the Vietnam Service Medal and the Vietnam Campaign Medal. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Roanoke, Virginia. In January 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Specific to claims for service connection for hearing loss, impaired hearing is considered a "disability" for VA purposes only when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; when the thresholds for at least three of these 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. If a Veteran serves 90 days or more of active, continuous service after December 31, 1946, and manifests certain chronic diseasesincluding sensorineural hearing lossto a degree of 10 percent or more during the one-year period following his separation from that service, service connection for the condition may be established on a presumptive basis, notwithstanding that there is no in-service record of the disorder. See 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In an October 1995 opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. The United States Court of Appeals for Veterans Claims (Court) has held that tinnitus is a disease, rather than merely a symptom, and that 38 C.F.R. § 3.309(a) "includes tinnitus, at a minimum where there is evidence of acoustic trauma, as an 'organic disease[] of the nervous system.'" Moreover, the Court indicated that, as such a presumptive condition, tinnitus warranted consideration of the continuity of symptomatology provisions found at 38 C.F.R. § 3.303(b). Fountain v. McDonald, 27 Vet. App. 258 (2015). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Service connection for bilateral hearing loss The Veteran contends that his hearing loss was incurred in service. Specifically, at his January 2021 hearing he testified that his hearing loss was due to military noise exposure. He specified that his military occupational specialty (MOS) was systems analyst, and that his duties included programming and operating IBM model machinery and the Honeywell 2000 while stationed at Fort Monroe, Virginia. With respect to the Honeywell 2000, he testified that they took the insulation off of the top of the machine so that it could print faster, and that the result was exposure to high levels of noise which caused in-service hearing loss. There is no material dispute that the Veteran has a current bilateral hearing loss disability as defined by VA. The report of a July 2015 VA audiometric examination clearly reflects, among other things, that he had puretone thresholds of 50 and 65 decibels in the right and left ears, respectively, at 4000 Hertz. As to the evidence of in-service injury or disease, the Board notes as an initial matter that Veteran's complete service treatment records (STRs) are not available. The July 2015 VA examiner noted that the Veteran's STRs did not contain a copy of a separation audiogram. In cases such as this, where the Veteran's complete service treatment records are not available, the Board's obligation to explain its findings and conclusions, and to carefully consider the benefit-of-the-doubt doctrine, is heightened. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). While acknowledging that a separation audiogram is unavailable, the Board nevertheless notes that highly probative evidence can be gleaned from the available STRs. First, military personnel records confirm that the Veteran worked both as a personal accounting specialist and a console operator while in service. Second, they confirm that he served at Fort Monroe. This evidence is generally consistent with the Veteran's testimony regarding the way in which his hearing was damaged in service. Third, and most importantly, while the Veteran's STRs do not contain audiometric scores at separation, they clearly show that he incurred hearing loss to at least some degree in service. His February 1969 entrance examination shows that his hearing was normal at that time, with his PULHES profile marked as a "1" in the "H" category (for hearing), which indicates a high level of medical fitness for hearing. As a hearing loss disability was not noted upon entry to service, the Veteran is presumed to have entered service in sound condition and free of a hearing loss disability. 38 U.S.C. § 1111; see also McKinney v. McDonald, 28 Vet. App. 15 (2016) (holding that even some degree of hearing loss would nonetheless be entitled to the presumption of soundness under 38 U.S.C. § 1111 if the hearing loss did not meet VA's definition of a "disability" under 38 C.F.R. § 3.385). By contrast, a March 1970 STR shows a PULHES profile marked as a "3" in the "H" category, which indicates that his hearing had worsened by that time to a significant degree. In light of the above, the Board finds that the probative evidence demonstrates that the Veteran experienced at least some level of hearing loss in service. The second element of service connection has therefore been established. As to the nexus, or link, between the Veteran's current hearing loss disability and service, the Board notes that a VA audiologist who evaluated the Veteran in July 2015 did not offer an opinion as to the etiology of the Veteran's hearing loss. He stated that he could not determine its etiology without resorting to speculation, reasoning that while the Veteran's hearing was within normal limits at enlistment, no separation audiogram was in the claims file, and that without documentation of hearing loss or tinnitus at discharge it was nearly impossible to determine whether hearing loss or tinnitus detected by audiometric testing later in life is a result of noise exposure during prior military service. Inasmuch as hearing loss is recognized as a chronic disease, however, it can be service connected on the basis of continuity of symptomatology alone, without a medical nexus opinion. See, e.g., Walker, supra. On balance, and taking into account the totality of the evidenceincluding STRs which are consistent with the Veteran's reports of military noise exposure, STRs showing an actual decrease in hearing during service, and the Veteran's credible statements with respect to onset and continuity of symptomsthe Board is persuaded that the criteria for an award of service connection for bilateral hearing loss have been met. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 C.F.R. § 3.102. The appeal of this issue is granted. 2. Service connection for tinnitus The Veteran contends that his tinnitus was incurred in service. Specifically, he stated in his August 2017 substantive appeal that it had been ongoing since he served at Fort Monroe. At the January 2021 hearing, he associated his tinnitus with his noise exposure while working with printers in service. The July 2015 VA examination report provided a diagnosis of tinnitus and the Board notes that the features and symptoms of tinnitus are readily observable by a lay person. The Board finds that the Veteran therefore has a current disability. See Layno, supra. As noted above, the Board also finds that service connection for bilateral hearing loss is warranted, inasmuch as the Veteran's STRs show he suffered at least some level of hearing loss during service. The probative evidence therefore also confirms an in-service event related to tinnitus. As to the nexus, or link, between the Veteran's tinnitus and service, he is competent to provide statements with respect to the onset and presence of tinnitus, inasmuch as such symptoms are observable by a lay person. Giving the Veteran the benefit of the doubt, the Board finds that his statements with respect to onset in service are credible. The Board acknowledges that the July 2015 VA examiner did not provide an opinion with regard to the etiology of the Veteran's tinnitus for the same reasons he did not provide an etiological opinion with respect to hearing loss. However, on balance, and taking into account the totality of the evidence including evidence of in-service hearing loss and the Veteran's statements with respect to the onset and continuity of symptoms, the Board is persuaded that the criteria for an award of service connection for tinnitus have been met. See, e.g., Walker, supra. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 C.F.R. § 3.102. The appeal of this issue is granted. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Oldroyd, 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.