Citation Nr: A23028944 Decision Date: 10/18/23 Archive Date: 10/18/23 DOCKET NO. 230123-315647 DATE: October 18, 2023 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 reasonable doubt in the Veteran's favor, his bilateral hearing loss had its onset in service. 2. Resolving all reasonable doubt in the Veteran's favor, his tinnitus had its onset in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107(b); 38C.F.R. §§ 3.102, 3.303(a), 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1970 to March 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2022 Regional Office (RO) rating decision. The Board notes that the Veteran originally filed a claim for bilateral hearing loss and tinnitus in December 2016. The RO denied the Veteran's claim in May 2017 and July 2018 rating decisions. The Veteran did not appeal, and the decision became final. In April 2022, the Veteran filed a supplemental claim for bilateral hearing loss and tinnitus. In a June 2022, the RO denied the claim. The Veteran timely appealed the June 2022 rating decision to the Board by requesting the Appeals Modernization Act (AMA) Hearing docket. As this is a Hearing docket appeal under the AMA, the record closed on the date of the June 2022 rating decision and reopened for evidence submission between October 12, 2023 (the date of the scheduled hearing) and January 10, 2024 (90 days following the scheduled hearing). The Veteran testified before the undersigned Veterans Law Judge in October 2023. This decision has been approved for expedited processing. A transcript of the hearing will be associated with the claims file at a later date. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires competent evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Certain chronic diseases, such as sensorineural hearing loss and tinnitus, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Although lay persons are considered competent to provide opinions on some medical issues, some medical issues fall outside of the realm of common knowledge of a lay person. 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, the benefit of the doubt is afforded to the claimant. 1. Entitlement to service connection for bilateral hearing loss is granted. 2. Entitlement to service connection for tinnitus is granted. The Veteran contends that his bilateral hearing loss and tinnitus started in service and is the result of exposure to hazardous noise while serving as a paratrooper/ infantryman. The RO has conceded that his military occupational specialty (MOS) as a paratrooper/infantryman exposed him to hazardous noise. For the purposes of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz 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 Board finds that the Veteran has a hearing loss disability that meets the VA regulatory criteria set forth under 38 C.F.R. § 3.385, based on a June 2022 VA Disability Benefits Questionnaire (DBQ) and audiometric results. The report revealed the following pure tone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 40 40 60 65 60 LEFT 35 40 65 70 65 Speech audiometry testing revealed speech recognition scores of 78 percent in the right ear and 86 percent in the left ear. These audiometric findings are sufficient to show a diagnosis of hearing loss for VA purposes. Additionally, during the June 2022 examination, the VA examiner diagnosed the Veteran with tinnitus. Thus, the remaining question is whether the Veteran's hearing loss and tinnitus disabilities are related to his military service. The Veteran reported that he first noticed hearing loss and tinnitus during service and that his symptoms have gotten worse over the years. See June 2018 and June 2022 VA examinations. The Veteran is competent to report the onset and continuation of his hearing loss and tinnitus symptoms and the Board finds his statements credible. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); see also Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Boards notes that the Veteran initially underwent a VA audiogram examination in June 2018. The VA examiner noted a diagnosis of bilateral hearing loss and tinnitus but provided negative nexus opinions. The examiner relied on the fact that the Veteran did not experience any significant changes in hearing from enlistment to separation, as well as an American College of Occupational Medicine Noise and Hearing Conservation Committee excerpt stating that 'a noise induced hearing loss will not progress once it is stopped'. The Board finds this rationale inadequate and assigns low probative weight to the opinion. A medical opinion based solely on the absence of documentation in the service treatment records or that fails to take into account lay statements is inadequate. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). Additionally, the June 2022 VA examiner also provided a negative nexus opinion for both disabilities. The examiner based these opinions on the following factors. First, the lack of permanent auditory damage on both his entrance and separation audiograms from conceded noise and, second, the lack of complaints or treatment for hearing loss and tinnitus in his service treatment records. The Board assigns low probative weight to this opinion based on the same reasoning stated for the June 2018 opinion. Lastly, the Board notes that the Veteran submitted a private medical opinion in April 2022. The examiner opined that the Veteran's bilateral hearing loss and tinnitus are more likely than not related to his service. However, no rationale was provided. Therefore, the Board assigns no probative weight to the opinion. Here, what remains in this case, without the medical opinions of record, are the Veteran's competent and credible lay statements that his tinnitus and hearing loss symptoms began during service. Thus, after resolving all reasonable doubt in favor of the Veteran, the Board finds that the evidence of record establishes that the Veteran's bilateral hearing loss and tinnitus had its onset in service. Therefore, the Board finds the benefit of the doubt applies in this case. Accordingly, service connection is warranted for bilateral hearing loss and tinnitus and the appeal is granted. S. Sorathia Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Navin, N. M. 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.