Citation Nr: 21042775 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 19-11 227 DATE: July 13, 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, his bilateral hearing loss has been shown to have been incurred in or related to service. 2. Affording the Veteran the benefit of the doubt, his tinnitus has been shown to have been incurred in or related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2020). 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Appellant had a period of active duty for training from January 1967 to June 1967. As discussed below, the Board is granting service connection for bilateral hearing loss and tinnitus. As such, the Appellant will have veteran status and the Board will proceed to refer to him as such. This matter comes to the Board of Veterans' Appeals (Board) from a February 2018 rating decision which denied service connection for bilateral hearing loss and tinnitus. In May 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board virtual hearing. A copy of the transcript is of record. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The U.S. Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). 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 a "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 a chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest 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, 1137; 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. Id. 1. Entitlement to service connection for bilateral hearing loss. The Veteran contends that service connection is warranted for bilateral hearing loss. The Board concludes that the Veteran has a current disability that began during or is otherwise related to active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Initially, the Board notes that a November 2017 VA audiologic examination shows pure tone thresholds, in decibels, of 25, 25, 25, 60, and 60 in the right ear, and 30, 39, 25, 60, and 60 in the left ear at 500, 1000, 2000, 3000, and 4000 Hertz, respectively. Thus, the Veteran has a current bilateral hearing loss disability for VA purposes. 38 C.F.R. § 3.385. While the Veteran's service treatment records, including January 1967 induction and June 1967 separation examinations, are absent any complaints of or treatment for any type of hearing loss or injury, the Veteran's DD Form 214 reflects that the Veteran's military occupational specialty (MOS) was a turret artillery repairman and he received a sharpshooter rifle badge. VA has conceded that it was highly probable that a veteran with this MOS was exposed to hazardous noise. Accordingly, the Board finds that in-service hazardous noise exposure is established. The Veteran was afforded a VA audiologic examination in November 2017 and addendum medical opinion in January 2018. While the VA examiner opined that the Veteran's bilateral hearing loss was less likely caused by or a result of service, the examiner's opinion appears to be based, in part, on normal audiologic results at entrance to and separation from service. However, the Board notes that the etiology of a Veteran's hearing loss cannot be based solely on a Veteran's "normal" hearing at entrance to and separation from service. Additionally, audiometric testing during the Veteran's entrance and separation examinations was not performed at 3000 Hz and therefore cannot be used to establish the absence of a hearing loss disability. See Highfill v. Wilkie, No. 17-3775, 2019 U.S. App. Vet. Claims LEXIS 273, at 6 (Vet. App. Feb. 25, 2019). Therefore, the Board finds the January 2018 VA opinion is inadequate and lacks probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). During the May 2021 Board hearing, the Veteran stated he was exposed to arms fire and that once, a box of dynamite exploded near him, which left his ears ringing for days afterward. The Veteran stated that he first sought treatment for his hearing in 1972, but that he did not receive any paperwork and he did not seek further treatment due to traveling for his employment. He denied post-service noise exposure. The Veteran submitted a private opinion dated in June 2021. The Veteran's treating clinician examined the Veteran and considered his lay statements regarding in-service noise exposure to arms fire and heavy weapon noises, lack of post-service occupational noise exposure, and the course of the disability since service. Based on the Veteran's history of hazardous noise exposure during service, lay statements that his tinnitus began during service, and lack of noise exposure other than during his time in service, the clinician opined that the Veteran's hearing loss was at least as likely as not a result of military noise exposure. The Board finds the June 2021 private clinician's opinion probative. The opinion was based upon treatment of the Veteran and provided an adequate rationale that considered the Veteran's in-service noise exposure, self-reported history, and medical expertise. See Nieves, 22 Vet. App. at 302-04. There is no competent and probative opinion to the contrary nor is there any basis to question the Veteran's credibility regarding his statements. Thus, the only probative evidence specifically addressing a link to service are lay statements and a positive nexus opinion from the Veteran's private clinician who indicated that the Veteran's bilateral hearing loss was caused by exposure to hazardous noise while in service. Upon review of the record, the Board finds the evidence to at least be in approximate balance as to whether the Veteran's current bilateral hearing loss was incurred in or otherwise related to 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 contends that service connection is warranted for tinnitus. Specifically, he contends that his tinnitus began while on active duty and that he has had tinnitus since. Because of the inherently subjective nature of tinnitus, it is readily capable of even lay diagnosis and the Veteran, as a layperson, is competent to testify or make statements as to his symptoms, specifically to experiencing tinnitus. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran states that he has tinnitus and the medical evidence of record is also in agreement that the Veteran has a current diagnosis of tinnitus. Thus, a current disability is shown. The Veteran's military occupational specialty (MOS) was a turret artillery repairman and he received a sharpshooter rifle badge. VA has conceded that it was highly probable that a veteran with this MOS was exposed to hazardous noise. The Veteran stated during the May 2021 Board hearing that he was exposed to arms fire and that once, a box of dynamite exploded near him, which left his ears ringing for days afterward. Accordingly, the Board finds that in-service hazardous noise exposure is established. The Veteran's service treatment records are otherwise silent for complaints of or treatment for any type of ringing in the ears, tinnitus, or hearing loss or injury. The Veteran was afforded a VA audiologic examination in November 2017 and addendum medical opinion in January 2018. While the VA examiner opined that the Veteran's tinnitus was less likely caused by or a result of service, the examiner's opinion appears to be based, in part, on normal audiologic results at entrance to and separation from service. However, the Board notes that the etiology of a Veteran's hearing loss cannot be based solely on a Veteran's "normal" hearing at entrance to and separation from service. Additionally, audiometric testing during the Veteran's entrance and separation examinations was not performed at 3000 Hz and therefore cannot be used to establish the absence of a hearing loss disability. See Highfill v. Wilkie, No. 17-3775, 2019 U.S. App. Vet. Claims LEXIS 273, at 6 (Vet. App. Feb. 25, 2019). Therefore, the Board finds the January 2018 VA opinion is inadequate and lacks probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The Veteran submitted a private opinion dated in June 2021. While the clinician opined as to the nature and etiology of the Veteran's hearing loss, the clinician did not opine as to the etiology of the Veteran's tinnitus. The clinician did note, however, the Veteran reported onset of his tinnitus during service. After careful review of the lay and medical evidence, the Board finds that the Veteran's assertions regarding the onset of his tinnitus and symptoms since service are credible. His MOS resulted in high probability of exposure to hazardous noise in service and the Veteran reported in-service hazardous noise exposure without the use of hearing protection. He reported that his tinnitus began during service and that he continues to experience symptoms today. The Board finds the Veteran's statements regarding in-service noise exposure, onset of tinnitus during service, and that he continues to experience tinnitus are credible and there is no persuasive evidence of record to the contrary. See Baldwin v. West, 13 Vet. App. 1 (1999); see also Dalton v. Nicholson, 21 Vet. App. 23 (2007). Here, the Veteran has provided a date of onset of tinnitus during service and the Veteran is competent to state that his tinnitus has continued since service. The Board finds that, based on all the evidence, and resolving any reasonable doubt in favor of the Veteran, the criteria for service connection for tinnitus are met. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Owen, 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.