Citation Nr: 22017995 Decision Date: 03/27/22 Archive Date: 03/27/22 DOCKET NO. 17-08 544 DATE: March 27, 2022 ORDER Entitlement to service connection for hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDING OF FACT It is just as likely as not the Veteran's hearing loss and tinnitus are the result of noise exposure and consequent injury (acoustic trauma) during his service. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria are met for entitlement to service connection for hearing loss and tinnitus. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from April 1964 to February 1968. This appeal to this Board of Veterans' Appeals (Board) is from an October 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2021, in support of these claims, the Veteran testified at a hearing at the RO before the undersigned Veteran's Law Judge (VLJ) of this Board, i.e., at a Travel Board hearing. A transcript of the hearing is of record. The Board held the record open for an additional 90 days following the hearing to allow the Veteran and his representative time to obtain and submit supporting evidence more specifically, a medical nexus opinion etiologically linking these claimed disabilities to his military service. They submitted this supporting evidence in January 2022, so the following month, therefore well within the time permitted. Service Connection Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or an injury; and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board must fully consider the lay evidence of record. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to report on the onset of disability and, when applicable, continuity of his or her symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence also can be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (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 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent, and this depends on whether the disability being claimed is simple or instead complex. Kahana v. Shinseki, 24 Vet. App. 428 (2011). 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. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for hearing loss For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a ratable disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory 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. The Court has held that "the threshold for normal hearing is from 0 to 20 dB [decibels], and higher threshold levels indicate some degree of hearing loss." See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court also explained in Hensley that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing loss disability (meaning meeting the requirements of this VA regulation), even when hearing acuity was within normal limits on audiometric testing at separation from service if there is sufficient evidence of a relationship or correlation between the Veteran's service and his current disability, as opposed to other ("intercurrent") causes. The record on appeal confirms the Veteran has a current diagnosis of hearing loss and that it is severe enough to, in turn, be considered a ratable disability for VA compensation purposes because of auditory thresholds of 40 decibels or greater in the relevant frequencies. See VA examination, August 2014; private examination, January 2022. In addition, VA concedes acoustic trauma in service based on his military occupational specialty (MOS) of jet aircraft servicer. See DD Form 214, February 1968. Therefore, the remaining question is whether the currently diagnosed hearing loss disability is related or attributable to the conceded noise exposure in service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). The Board concludes there is indeed this correlation. The Veteran's private examiner opined in the report of the January 2022 evaluation that the Veteran's hearing loss was as likely as not caused by the acoustic trauma he sustained while in service. As rationale, this private examiner pointed out that the Veteran's post-service history did not expose him to noise that would have been likely to cause his hearing loss and that his medical and family history also is not relevant when it comes to potentially contributing to his currently diagnosed hearing loss. The Board finds this opinion highly probative and resultantly affords it considerable weight since consistent with the other evidence of record and because it takes into account the circumstances, conditions, and hardships of the Veteran's service and his lay statements including hearing testimony under oath. Moreover, this private examiner considered whether there were other factors that could explain the Veteran's hearing loss, before ruling them out. The Board equally is aware of the August 2014 VA examiner's opinion contrarily concluding the Veteran's hearing loss disability conversely was less likely than not caused by or a result of an event in service, referring especially to acoustic trauma. However, the reasoning the VA examiner provided is inadequate and, consequently, this other medical opinion is given less deference and probative weight. The Board may favor the opinion of one competent medical expert over another if its statement of reasons and bases is adequate to support that decision. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Stated another way, the Board decides, in the first instance, which of the competing medical opinions or examination reports is more probative of the medical question at issue. See, e.g., Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Here, notably, in discussing the underlying basis of that unfavorable opinion, the VA examiner cited the absence of any documentation of complaints or treatment for hearing loss during the Veteran's service, as would be reflected in his service treatment records (STRs). In other words, the VA examiner seemingly discounted any notion that hearing loss can have a "delayed onset". But there is disagreement in some medical circles concerning whether that is true, and in any event a VA examination is inadequate if the examiner does not consider potentially relevant lay evidence including, here, as concerning the Veteran's assertion of acoustic trauma in service owing to his MOS and of continuous symptoms since. See Miller v. Wilkie, 32 Vet. App. 249 (2020); see also Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (similarly holding that, when the Veteran has provided lay testimony of an in-service injury, an examiner cannot ignore that lay evidence and base his or her opinion that there is no relationship to service merely on the absence of in-service corroborating medical records, e.g., STRs). The Veteran also explained during his hearing before this Board that he admittedly did not complain of hearing loss during his service, although he had it and has continued to during the many years since, because he did not want to jeopardize his military career (i.e., be removed from his MOS, especially since he so enjoyed it). Moreover, to reiterate, Hensley does not require finding that the Veteran's hearing loss began during his service, or even within a year of his discharge in the case of sensorineural hearing loss especially, only that there is sufficient evidence now linking it to his service. And there now is with the benefit of the additional evidence submitted in January 2022 after the hearing. Additionally, the VA examiner did not seem to consider the Veteran's lay statements that his hearing loss symptoms began in service and progressively worsened over time. As the VA examiner did not seem to consider the possibility of delayed onset hearing loss or discuss why it cannot occur or consider the Veteran's lay statements, the Board finds this opinion less probative in comparison to the private's examiner's conversely favorable opinion. The Board thus is left with a record showing the Veteran unequivocally sustained relevant injury in service (acoustic trauma), that he unequivocally now has a ratable hearing loss disability according to § 3.385, and that it cannot be conclusively disassociated from his injury in service. In other words, at the very least, this posited correlation is as likely as not true. In this circumstance the claim must be granted rather than denied. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (explaining that there need only be an "approximate", meaning nearly equal, balance of evidence for versus against the claim). See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (indicating "absolute" etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology). 2. Entitlement to service connection for tinnitus The Veteran contends that he also suffers from tinnitus owing to his service, and he attributes it to the same source or cause namely, acoustic trauma intrinsic to his MOS as a jet aircraft servicer or mechanic. Tinnitus is "a noise in the ear, such as ringing, buzzing, roaring, or clicking." See Dorland's Illustrated Medical Dictionary 1714 (28th ed. 1994). Tinnitus is often subjective in nature; indeed, because of its inherently subjective nature, even a layman such as the Veteran is considered competent to report the observable manifestations of this condition like this ringing, buzzing, roaring, or clicking sound mentioned. He is competent to provide evidence regarding tinnitus, as it is a condition readily apparent through the senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Because tinnitus is "subjective," its existence is generally determined by whether the Veteran claims to experience it. Indeed, for VA compensation 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). For this reason, the Board finds that the Veteran is competent to report experiencing ringing in his ears, in other words that he has tinnitus. There is no inherent reason to question or doubt his credibility concerning this, thus, his lay testimony is probative since both competent and credible. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Moreover, as already noted, the Board has conceded acoustic trauma in service, and the January 2022 private examiner concluded the Veteran's tinnitus is as likely as not the result of the acoustic trauma he sustained during his service. Accordingly, service connection for tinnitus is granted, including since tinnitus is often associated with hearing loss, so with the same condition that has been attributed to his service. 38 C.F.R. § 3.310. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Baronofsky 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.