Citation Nr: A25035447 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 240826-468254 DATE: April 17, 2025 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. Resolving all doubt in his favor, the Veteran's bilateral hearing loss is related to service. 2. Resolving all doubt in his favor, the Veteran's tinnitus is 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. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from July 1991 to July 1997. In June 2024, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of entitlement to service connection for bilateral hearing loss and tinnitus most recently addressed in a June 2024 rating decision. In August 2024, the agency of original jurisdiction (AOJ) issued the supplemental claim decision on appeal, which found that new and relevant evidence had been received and denied the claim based on the evidence of record at the time of that decision. Therefore, the Board of Veterans' Appeals (Board) may only consider the evidence of record at the time of the decision on appeal. In the August 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the August 2024 AOJ decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. As a final preliminary matter, the Board acknowledges the recent precedential decision in Williams regarding 38 C.F.R. § 20.202(c)(2) and deciding AMA appeals before the time to change dockets has ended. See Williams v. McDonough, 37 Vet. App. 305 (2024). Generally, the Board may not decide an appeal before the deadline for requesting an AMA docket switch has elapsed. 38 C.F.R. § 20.202 (c)(2) allows claimants to switch AMA dockets by completing and submitting a new Notice of Disagreement within one year from the date the AOJ mails notice of the decision on appeal, or 60 days from when the Board receives the Notice of Disagreement, whichever is later, unless a claimant has already submitted evidence or testimony as described in 38 C.F.R. §§ 20.302 and 20.303. In this case, less than one year has passed since the AOJ mailed notice of the decision on appeal; however, as the Board is granting in full the issues on appeal, there is no prejudice to the Veteran in proceeding with the claim on appeal prior to the expiration of the deadline for requesting an AMA docket switch. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). For certain chronic diseases, including hearing loss and tinnitus as organic diseases of the nervous system, a disability will be presumed related to service if it was shown as chronic in service or if it manifested to a compensable degree within a presumptive period following separation from service. 38 C.F.R. §§ 3.307, 3.309. If the disease's chronicity was not noted in service, the disability can still be presumed related to service if the evidence shows there is a continuity of symptomatology since service. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). A veteran is competent to describe symptoms that he experienced in service or at any time after service, when the symptoms he perceived or experienced were directly through the senses. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). When the evidence is in approximate balance in the veteran's favor or nearly equal regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side, or another is the benefit of the doubt doctrine not for application). 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. The Veteran seeks entitlement to service connection for bilateral hearing loss and tinnitus. He asserts that his current bilateral hearing loss and tinnitus began in service and were caused by his noise exposure as an aircrew member. See November 2021 VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits. Initially, the Board notes that, in the August 2024 rating decision on appeal, the AOJ made favorable findings as to a current disability and to exposure to hazardous noise during service for both bilateral hearing loss and tinnitus. The Board accepts these favorable findings, satisfying the first and second elements of service connection. Thus, the remaining inquiry before the Board is whether there is a nexus between the Veteran's bilateral hearing loss and tinnitus and his time in service. Turning to the evidence of record, during his VA examination in July 2024, the Veteran reported constant tinnitus, in the form of hissing, that he first noticed in service and has worsened in intensity over time. The Veteran further reported that tinnitus interferes with his hearing and that he has trouble hearing others speak clearly at times. The VA examiner opined that the Veteran's bilateral hearing loss and tinnitus were less likely than not caused by his noise exposure in service. The examiner reasoned that, although hazardous noise exposure and acoustic trauma are conceded, the Veteran had normal hearing at enlistment and separation and otherwise did not have a significant shift in any frequency between his entrance and separation medical examinations. Thus, the examiner found no basis to conclude that his bilateral hearing loss and/or tinnitus disabilities are related to noise exposure during service. The VA examiner further opined that the Veteran's bilateral hearing loss and tinnitus were less likely than not caused by his in-service toxic exposure risk activities. The examiner noted that there is no medical or scientific evidence available that provides any indication of a relationship between the development of bilateral hearing loss and/or tinnitus and the Veteran's toxic exposure risk activities. In support of his claim, in June 2024 the Veteran submitted a medical opinion from a private audiologist. The audiologist noted that the Veteran wore a headset for at least 8-10 hours a day, listening to loud static and trying to intercept and translate messages, and was exposed to jet and other aircraft engines and weapons training. The private audiologist further documented the Veteran's reports that he currently experiences constant tinnitus, which initially began during his time in service after his chronic exposure to headset static. No post-service noise exposure was reported. Opining that it is more likely than not that the Veteran's bilateral hearing loss and tinnitus are related to and caused by the Veteran's excessive noise exposure during service, the private audiologist noted excessive noise from headset static, various aircraft engines, and weapons training; notched configuration on hearing loss indicating excessive noise exposure; and initial onset of tinnitus during service after chronic exposure to headset static. Both the private examiner and VA examiner are competent to provide the requested opinions and the Board has no reason to question their credibility. Therefore, the positive and negative evidence is nearly balanced. (Continued on the next page) Considering the above, the Board finds that there is an approximate balance of positive and negative evidence, and therefore finds that the benefit-of-the-doubt doctrine applies. After resolving all doubt in favor of the Veteran, the Board finds that it is at least as likely as not that the Veteran's bilateral hearing loss and tinnitus were caused by the Veteran's in-service noise exposure and, thus, are related to service. Accordingly, service connection for bilateral hearing loss and tinnitus are granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Caitlin B. 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.