Citation Nr: 22006294 Decision Date: 02/03/22 Archive Date: 02/03/22 DOCKET NO. 17-18 793 DATE: February 3, 2022 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. REMANDED Entitlement to an initial rating in excess of 10 percent for service-connected ulcer is remanded. FINDINGS OF FACT 1. Resolving all doubt in favor of the Veteran, he was exposed to acoustic trauma during active service, and has experienced symptoms of bilateral hearing loss continuously since separation from service. 2. Resolving all doubt in favor of the Veteran, he was exposed to acoustic trauma during active service, and has experienced symptoms of tinnitus continuously since separation from service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1101, 1131, 1133, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1131, 1133, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1975 to November 1979. The Veteran testified before the undersigned Veterans Law Judge (VLJ) of the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) at a June 2021 video-conference hearing. A hearing transcript is in the claims file. Service Connection Entitlement to service connection for bilateral hearing loss and tinnitus. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 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 for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Alternatively, continuity of symptomatology may be established if a claimant can demonstrate: (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology under 38 C.F.R. § 3.303 (b); Barr v. Nicholson, 21 Vet. App. 303 (2007). Where a claimant asserts entitlement to a chronic condition but there is insufficient evidence of a diagnosis in service, he can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309 (a), including neurological disorders such as hearing loss and tinnitus. Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). Such chronic diseases are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.307, 3.309(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a claimant is competent to report on that of which he or she has personal knowledge). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant 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; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). During his August 2014 hearing before a Decision Review Officer of the VA Regional Office (RO), and in a number of written statements made in support of his claims during the appeal, the Veteran reported that during service he was on the flight deck, servicing and troubleshooting aircraft, during twelve-to-fourteen hour shifts, including nighttime flight operations. He reported that there was constant noise from the jets and catapults and asserted that he had constant ringing in his ears and gradual hearing loss. During his June 2021 Board hearing, the Veteran reported hearing loss and tinnitus during service, becoming progressively worse since. The Veteran's service treatment records dated during his active service are silent for complaint, treatment, or diagnosis of hearing loss or tinnitus; during reserve service, during a September 1991 Report of Medical Examination, hearing loss was noted. His service separation form, his DD-214, indicates that his military occupational specialty (MOS) was electronics mechanics, and notes aviation training. The Board concedes that the Veteran experienced acoustic trauma in service as a result of his military duties, considering his MOS and lay statements describing in-service exposure consistent with his recorded duties. During a January 2013 VA audiological Disability Benefits Questionnaire (DBQ), the Veteran was diagnosed with bilateral hearing loss and tinnitus. He demonstrated puretone thresholds, in decibels, in the right ear of 10, 35, 35, 35, 35, and in the left ear of 20, 35, 40, 45, 35, each measured at 500, 1000, 2000, 3000, and 4000 Hertz, respectively. There is evidence of an auditory threshold of 40 decibels or greater in at least one of the specified frequencies, or evidence of auditory thresholds of 26 decibels or greater in at least three of these frequencies; the Veteran's bilateral hearing loss thus meets the VA requirements for consideration as a disability. 38 C.F.R. § 3.385. The VA examiner, in January 2013, opined that the Veteran's bilateral hearing loss and tinnitus were not at least as likely as not related to in-service acoustic trauma; reasoning that he did not report of the onset of such until many years after service, that his particular pattern of hearing loss was most consistent with inherited hearing loss, and there was no evidence of in-service cochlear damage. The Board cannot explain why the Veteran reported later dates of onset as to his bilateral hearing loss and tinnitus symptoms to the VA examiner than the dates he consistently reported to VA during the course of the appeal. In any event, in a September 2020 private opinion, the examiner opined that the Veteran's auditory condition including bilateral tinnitus, was at least as likely as not related to in-service acoustic trauma; based on his in-service occupation and noise exposure and medical literature supporting such a connection. Based on the forgoing, there is probative evidence of current bilateral hearing loss that comports with VA standards to be considered a disability under 38 C.F.R. § 3.385 and tinnitus, and, resolving all doubt in favor of the Veteran, probative evidence of in-service acoustic trauma and continued bilateral hearing loss and tinnitus symptoms from the time of separation from service to the present. A positive September 2020 private etiological opinion is also of record. 38 U.S.C. §§ 1131, 1133; 38 C.F.R. §§ 3.307, 3.309, 3.385; Walker, 708 F.3d 1331, at 1337-39. The Board thus finds that service connection for bilateral hearing loss and tinnitus is warranted. REASONS FOR REMAND Entitlement to an initial rating in excess of 10 percent for service-connected ulcer is remanded. During his June 2021 Board hearing, the Veteran asserted that his service-connected ulcer had worsened since his last VA examination, dated in March 2013, more than seven years prior. On remand, the RO should afford the Veteran a new VA examination of his service-connected ulcer to determine the current severity of such. Also, during his June 2021 Board hearing, the Veteran reported that he had private treatment from Dr. Ankoma-Sey. On remand, the RO should inform the Veteran that his private treatment records from that provider currently associated with the claims file are dated through September 2013. Inform him also that his private treatment records from Dr. Meisner are dated through June 2013 and his private treatment records from Dr. Williams are dated through April 2011. The RO should provide the Veteran an opportunity to supplement the record with his updated private treatment records or authorize VA to obtain such on his behalf. The matters are REMANDED for the following action: 1. Inform the Veteran that his private treatment records currently associated with the claims file from Dr. Ankoma-Sey are dated through September 2013, his private treatment records from Dr. Meisner are dated through June 2013, and his private treatment records from Dr. Williams are dated through April 2011. Ask the Veteran to complete a VA Form 21-4142 for any provider of private treatment for any outstanding relevant private treatment records. Make two requests for the authorized records from any identified provider unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected ulcer. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Department of Veterans Affairs 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.