Citation Nr: 22018385 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 18-50 620 DATE: March 29, 2022 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for bilateral hearing loss is granted. FINDINGS OF FACT 1. The Veteran's tinnitus was incurred in service. 2. The Veteran's bilateral hearing loss was incurred in service. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1968 to August 1969. The matter comes before the Board of Veterans Appeals (Board) from a February 2017 rating decision of the VA Regional Office (RO). The rating decision denied reopening the Veteran's claim for service connection for tinnitus and denied the claim for service connection bilateral hearing loss. The Veteran testified at a June 2021 Board hearing before the undersigned Veterans Law Judge (VLJ). The VLJ agreed to hold open the record for an additional 60 days to allow the Veteran an opportunity to supplement the record with further evidence. A copy of the transcript is of record. The issue was previously before the Board in August 2021 and was remanded for a VA audiology examination and opinion. In November 2021, an audiology examination addressing the etiologies of tinnitus and bilateral hearing loss was obtained. The Board finds that the opinions are lacking but as the totality of the evidence supports a grant of benefits, a remand by a supplemental opinion is not warranted. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Service Connection 1. Entitlement to service connection for tinnitus is granted. 2. Entitlement to service connection for bilateral hearing loss is granted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303 (a), (b), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also 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). To establish service connection for the claimed disorder, there must be (1) 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, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331(Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence considering the entirety of the record. Post-service development of an "organic disease of the nervous system" to a degree of 10 percent within one year from the date of termination of such service establishes a rebuttable presumption that the disease was incurred in service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The Veteran contends that he is entitled to service connection for his current tinnitus and bilateral hearing loss. He avers that his disabilities resulted from his exposure to hazardous noise during his service. VA conceded a high probability of hazardous military noise exposure based on the Veteran's military occupation specialty (MOS) of heavy truck driver and armorer. VA has also conceded a current bilateral hearing loss for VA purposes. Thus, the first element of a service connection claim is satisfied. Shedden, 381 F.3d at 1166-67. Of record is a May 2017 private audiological testing from Sound Relief Hearing Center, which notes that the Veteran's report of leaving service in 1969 and his hearing loss and tinnitus began shortly thereafter. Moreover, during the Veteran's Board hearing, he competently and credibly testified beginning in the early 80s, he constantly had to ask people to repeat themselves. After service, his post-service civilian jobs did not involve hazardous noise. If at any time it did, he used hearing protection. Tinnitus is a condition that is capable of lay observation, and the Veteran's reports of ringing in his ears are credible. Charles v. Principi, 16 Vet. App. 370 (2002). The first element of a service connection claim regarding tinnitus is also satisfied. As previously mentioned, VA has conceded the Veteran's in-service exposure to hazardous noise. The Veteran contends that his bilateral hearing loss and tinnitus started soon after service and was caused by said exposure. He offered no other concurrent cause for his bilateral hearing loss and tinnitus. The Board finds that the Veteran was exposed to excessive noise in service, and his statements of hearing loss and tinnitus starting soon after service to be both competent and credible. Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The second element of a service connection claim is satisfied concerning both issues. Shedden, 381 F.3d at 1166-67. In November 2021, the VA audiologist found that both tinnitus and bilateral hearing loss were not caused by or resulted from military noise exposure. For bilateral hearing loss, he explained that the Veteran reported at today's exam that the initial onset of hearing loss was in 1979, which was ten years after separation from active duty. Current research does not support late-onset noise-induced hearing loss. There is no complaint of or treatment for hearing decrease during active duty in the treatment records or at separation. Although noise exposure is conceded, there must be a nexus of hearing loss occurring during active duty to relate current hearing loss to military noise exposure and not another etiology. The evidence is against the nexus in this case. For tinnitus, the examiner explained Military loud noise exposure is conceded for this Vietnam Veteran. Initial onset of tinnitus was reported at today's exam by the Veteran to be "early 1980s," which is 11+ years post-separation from active duty military service. There is no report of tinnitus in the service treatment records while on active duty or at separation. The current literature does not support late onset noise-induced tinnitus. A 2006 study by The Institute of Medicine titled Noise and Military Service: Implications for Hearing Loss and Tinnitus states, "as the interval between noise exposure and the onset of tinnitus lengthens, the possibility that tinnitus will be triggered by other factors increases. A complete understanding of the mechanisms by which tinnitus is generated will be needed before the existence of delayed onset of noise-induced tinnitus can be confirmed or rejected." Tinnitus due to noise exposure or acoustic trauma is known to have a noticeable onset immediately or very soon following the incident, but not years later. The Board finds the November 2021 VA audiological examiner's rationale unpersuasive and assigns little probative value to his negative nexus opinions. Jones v. Shinseki, 23 Vet. App. 382 (2010). In arriving at his conclusions, the examiner relied on the lack of in-service complaint, treatment, and the manifestation of the disabilities in service. Moreover, the examiner primarily relied on the "report at today's exam" and did not address the Veteran's previous assertions of the disabilities manifesting soon after service, within a year thereof, and continuing. The Veteran has continuously held that his bilateral hearing loss and tinnitus result from noise exposure, and they started soon after service. His reports are credible. Hearing loss and tinnitus are "organic diseases of the nervous system" and are subject to presumptive service connection under 38 C.F.R. § 3.309(a). Fountain v. McDonald, 27 Vet. App. 258 (2015). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. §§ 3.303(b), 3.309; Walker, 708 F.3d 1331 (Fed. Cir. 2013). Considering the above, the Board finds that the theory of continuity of symptomatology is applicable. 38 C.F.R. § 3.303(a), (b); Walker, 708 F.3d 1331. There is competent and credible evidence that reflects that the Veteran was exposed to hazardous in-service noise, and he noticed hearing loss and tinnitus began shortly after discharge, which has persisted since and worsened. Accordingly, the Board finds that a grant of service connection for bilateral hearing loss and tinnitus based upon continuity of symptomology is the decision that is the most consistent with VA's policy. 38 C.F.R. § 3.303(a). D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Stevens, 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.