Citation Nr: 21032713 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 17-45 971 DATE: May 27, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his bilateral hearing loss is at least as likely as not attributable to service. 2. Resolving reasonable doubt in the Veteran's favor, his tinnitus is at least as likely as not attributable to service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1971 to March 1974. This matter comes before the Board of Veterans' Appeals (Board) on his appeal of a January 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In the September 2017 VA Form 9, Substantive Appeal, the Veteran requested an optional Board hearing. A Board hearing was held in February 2021, and the Veteran testified before the undersigned Veterans Law Judge. A copy of the February 2021 Board hearing transcript was associated with the claims file. Decisions of the Board shall be based on the entire record and consideration of all evidence, lay and medical, that is material. 38 U.S.C. § 7104(a); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.303(a). In evaluating the evidence in any given appeal, it is the responsibility of the Board to make appropriate determinations of (a) competence; (b) credibility; and (c) weight. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Medical opinions are deemed competent since they are from medical professionals. 38 C.F.R. § 3.159(a)(1). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all the evidence is assembled, the VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). SERVICE CONNECTION Generally, to establish service connection on a direct basis, a Veteran must show a current disability; an in-service incurrence of a disease or injury; and a causal relationship between the present disability and the disease or injury incurred during service, the so-called "nexus" requirement. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). As to the threshold element of the current disability, there are also specific requirements regarding what constitutes a hearing loss disability under VA law. For VA purposes, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hz is 40 dB or greater; when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. For chronic diseases defined under 38 C.F.R. § 3.309 (a), the evidentiary requirements for establishing entitlement to service connection benefits are more relaxed than the above three-part test. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012). Specifically, 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"). 38 C.F.R. § 3.303(b). If the evidence is not sufficient to establish that the disease was chronic at the time of service, then a continuity of symptoms after service must be shown, which is a distinct and lesser evidentiary burden than the nexus element of the above three-part test. Id.; Walker at 1338. Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and "confirm[s] the existence of the chronic disease while in service or [during a] presumptive period." Id. at 1338-39. In addition, the law provides that, where a Veteran served ninety days or more of active service, and chronic diseases manifests to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 1. Entitlement to service connection for bilateral hearing loss The Veteran contends his bilateral hearing loss is due to noise exposure during his military service in Vietnam. In February 2014 and December 2016, the Veteran underwent VA examinations. The examiners diagnosed the Veteran as having bilateral sensorineural hearing loss. The Veteran's audiological findings met the requirements of 38 C.F.R. § 3.385 for bilateral hearing loss. Thus, the Veteran has a current bilateral hearing loss disability and satisfies the first element. According to the Veteran's military personnel records (MPRs), the Veteran was assigned to the 506th Infantry Division when arriving in Vietnam prior to being transferred to the 222nd Personnel Service Division in November 1971. Thus, noise exposure is conceded and the second element is met. The question before the Board is whether the Veteran's current bilateral hearing loss is at least as likely causally related to military service. The Veteran's service treatment records are silent for complaints of, reference to, or treatment for hearing loss. The Veteran's March 1974 separation examination does not show the Veteran complained of hearing loss. In February 2014 and December 2016, the Veteran underwent VA examinations. At the February 2014 examination, the Veteran reported exposure to noise during his combat infantry service in Vietnam. He reported significant difficulty understanding speech with background noise, difficulty hearing the television and conversing on the telephone. He also reported he used hearing protection post-service for occupational noise exposure as a heavy equipment/truck mechanic. The February 2014 examiner did not provide a nexus opinion. The December 2016 examiner opined that the Veteran's bilateral hearing loss is less likely than not caused by or a result of military noise exposure, reasoning that the Veteran's service treatment records documented stable auditory thresholds when comparing the Veteran's January 1973 enlistment examination with his follow-up January 1973 examination and his March 1974 separation examination. The Veteran's enlistment audiogram occurred in January 1971 not January 1973. He also relied on the Veteran's military occupational specialty (MOS) of personnel records specialist carries a low probability of hazardous noise exposure while noting the Veteran served in Vietnam. Additionally, the examiner did not consider the Veteran's lay statements regarding the circumstances of the Veteran's service while in Vietnam when formulating her nexus opinion. Thus, the Board finds the examiner's nexus opinion is of no probative value. Reonal v. Brown, 5 Vet. App. 458, 460-61(1993) (medical opinions based on an incomplete or inaccurate factual premise are not probative). The Veteran provided lay statements in March 2017, April 2019 and testified at a February 2021 Board hearing. The Veteran stated the he served in active infantry while in Vietnam for four months prior to being transferred as a personnel specialist. He stated that between August 1971 and mid-December 1971, he was exposed to M-16 weapons fire, artillery outgoing and incoming, claymore mines, helicopters, and weapons fire from inside of the helicopters he was in. He stated he was used more as an infantryman than a personnel records specialist, was stationed on fire bases where there was constant artillery fire and was not provided with hearing protection. The Veteran explained that he wore hearing protection for his occupation as a mechanic post-service. The Veteran is competent to report his firsthand experiences, observations, experiences, symptoms, and past recollections. 38 C.F.R. § 3.159(a)(2). See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran's statements are consistent with the evidence of record, which makes the Veteran's statements credible. The Veteran's assertions that he experienced noise exposure while in Vietnam are consistent with his MPRs. Indeed, the Veteran is competent in some instances to provide a competent opinion regarding etiology. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology). Accordingly, the Board finds the Veteran's statements significantly probative. After reviewing the entire record as a whole including the Veteran's credible statements and in-service noise exposure, the Board concludes that the evidence of record is at least equipoise in establishing that the Veteran's bilateral hearing loss is causally related to his military service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for bilateral hearing loss is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for tinnitus The Veteran asserts that his tinnitus is attributable to military service. During the February 2014 and December 2016 VA examinations, the Veteran reported tinnitus. Thus, the Veteran has a tinnitus disability within the appellate period. As noted above, in-service noise exposure is conceded. The question before the Board is whether the Veteran's tinnitus is at least as likely as not causally related to military service. The Veteran's service treatment records are silent for complaints of, reference to, or treatment for tinnitus. The Veteran's March 1974 separation examination does not show the Veteran complained of tinnitus. In February 2014 and December 2016, the Veteran underwent VA examinations. At the February 2014 examination, the Veteran reported his tinnitus began during the 1970s and progressively worsened overtime. He also reported he used hearing protection post-service for occupational noise exposure as a heavy equipment/truck mechanic. The February 2014 examiner did not provide a nexus opinion. The December 2016 examiner noted that the Veteran reported onset of tinnitus was "years ago." The VA examiner opined that the tinnitus is less likely than not caused by or a result of military noise exposure, reasoning that the Veteran's service treatment records were normal and the Veteran's MOS carries a low probability of hazardous noise exposure even though the examiner noted the Veteran served in Vietnam. Since the examiner did not consider the Veteran's lay statements regarding the circumstances of the Veteran's service while in Vietnam when formulating her nexus opinion, the Board finds the examiner's nexus opinion is of no probative value. Reonal at 460-61. The Veteran provided lay statements in March 2017, April 2019 and testified at a February 2021 Board hearing. The Veteran stated the he served in active infantry while in Vietnam for four months prior to being transferred as a personnel specialist. He stated he was used more as an infantryman than a personnel records specialist. He recalled the ringing in his ears began in September or October 1971 and did not know what it was and thought it would go away, but it never did. He states that he has experienced ringing in his ears since. He also stated that he was not provided with hearing protection while in Vietnam. The Veteran explained that he wore hearing protection for his occupation as a mechanic post-service. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran is competent to report that he experiences tinnitus. This is because a diagnosis of tinnitus requires only personal knowledge as it comes to the Veteran through his senses and the Veteran is competent to indicate he experiences ringing in his ears. See Layno at 470; Charles at 374. Indeed, the Veteran is competent in some instances to provide a competent opinion regarding etiology. See Jandreau at 1372; see also Barr at 303 (lay testimony is competent to establish the presence of observable symptomatology). The Veteran's statements are credible because they are consistent with the evidence of record. Accordingly, the Board finds the Veteran's statements significantly probative. (Continued on the next page) After reviewing the entire record as a whole, the Board concludes that the evidence of record is at least equipoise in establishing that the Veteran's current tinnitus is causally related to his military service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for tinnitus is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Agarwal, 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.