Citation Nr: 1317131 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 07-18 937 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from September 1979 to December 1979 and from January 2003 to October 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In November 2010, the Veteran testified at a hearing conducted before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. In February 2011 and September 2011, the case was remanded to afford the Veteran a VA examination. Review of the record indicates substantial compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. Bilateral hearing loss was not present during the Veteran's first period of service, was not manifested within a year of discharge from this period of service, and the currently diagnosed bilateral hearing loss did not develop as a result of any incident during his first period of service. 2. Bilateral hearing loss clearly and unmistakably preexisted the Veteran's second period of service and the bilateral hearing loss clearly and unmistakably was not permanently worsened beyond normal progression during or as a result of the second period of service. 3. The Veteran's tinnitus is as likely as not related to his active duty. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred or aggravated in service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2012). 2. The criteria for service connection for tinnitus are met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 & 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). As regards the issue of service connection for tinnitus, the Board is granting in full that issue. Consequently, the Board finds that any lack of notice and/or development, which may have existed under the VCAA, cannot be considered prejudicial to the Veteran, and remand for such notice and/or development would be an unnecessary use of VA time and resources. The Veteran was notified in a letter dated in March 2005 regarding the type of evidence necessary to establish his claim for service connection for bilateral hearing loss. He was instructed how to establish service connection. The Veteran was notified of what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. A July 2006 letter notified the Veteran of the criteria for assigning a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Regarding VA's duty to assist, VA obtained the Veteran's service treatment records (STRs), post-service medical records and also secured examinations in furtherance of his claims. Pertinent VA examinations were obtained in December 2005 and November 2011. 38 C.F.R. § 3.159(c)(4). The November 2011 VA examination obtained in this case is sufficient, as the examiner conducted a complete examination, recorded all findings considered relevant under the applicable law and regulations, and offered well supported opinions based on consideration of the full history of the disorders. The Board finds that VA's duty to assist the Veteran with respect to obtaining a VA examination concerning the issues adjudicated herein has been met. 38 C.F.R. § 3.159(c)(4). VA has no duty to inform or assist that was unmet. The Veteran has not identified any additional pertinent medical records that have not been obtained and associated with the claims folder. The Veteran was also provided with a hearing related to his present claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, the VLJ explained the issues on appeal, but did not suggest the submission of any additional evidence. This was not necessary, however, because the Veteran fully described why he believed service connection was warranted for bilateral hearing loss and tinnitus. Accordingly, the Veteran is not shown to be prejudiced on this basis. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). II. Analysis The Veteran contends that his bilateral hearing loss and tinnitus began in service following military noise exposure. See, e.g., June 2007 substantive appeal. Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic diseases (e.g., sensorineural hearing loss) may be presumptively service connected if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service. 38 C.F.R. §§ 3.307(a)(3); 3.309(a) (2012). The absence of evidence of hearing loss in service is not a bar to service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 160 (1993). For the purposes of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of those 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. A veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, except where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. §§ 1111. Thus, veterans are presumed to have entered service in sound condition as to their health. This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulation provides expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. at (b)(1). Prior provisions of 38 C.F.R. § 3.304(b) only required a finding that clear and unmistakable evidence showed that an injury or disease existed prior to service in order to rebut the presumption of soundness. However, the provisions of 38 C.F.R. § 3.304(b) were invalidated as being inconsistent with 38 U.S.C.A. § 1111. See generally Cotant v. Principi, 17 Vet. App. 116 (2003), Jordan v. Principi, 17 Vet. App. 261 (2003), Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004), VAOPGCPREC 3-2003 (July 16, 2003). Pursuant to these developments, it is now clear that, in order to rebut the presumption of soundness at service entry, there must be clear and unmistakable evidence showing that the disorder preexisted service and there must be clear and unmistakable evidence that the disorder was not aggravated by service. See 38 C.F.R. § 3.304 (b) (2012). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 3-2003 (July 16, 2003). Before these above cited precedent opinions, VAOPGCPREC 3-2003, and the recent regulatory amendment, VA had the burden to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability pre-existed service. If VA met this burden, however, it then had the burden to rebut the presumption by a preponderance of the evidence (a lower standard) that the preexisting disorder was not aggravated by service. Now, VA must also show by clear and unmistakable evidence that the preexisting disorder was not aggravated during service (a higher standard). A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Lay assertions 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.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). In the current appeal, the Veteran's DD 214 shows that he had service in the Army National Guard with a military occupational specialty (MOS) of an automated logistical specialist. The Veteran reported noise exposure during his second period of active duty when he was stationed near a runway in Turkey. Accordingly, the Board in its February 2011 remand conceded in-service acoustic trauma from that second period of active duty in 2003. After reviewing the evidence of record, the Board concludes that service connection for a bilateral hearing loss is not warranted, while service connection for a tinnitus is warranted. Specifically, with regards to the Veteran's bilateral hearing loss, the evidence shows that it was incurred prior to his second period of active service and was not aggravated by that service. The evidence also supports of a finding that the Veteran's tinnitus disability began in service due to conceded in-service acoustic trauma. 1. Bilateral Hearing Loss The Veteran's STRs do not reveal any complaint of, or treatment for, bilateral hearing loss. Several in-service audiological evaluations are of record, including evaluations during his National Guard service. These evaluations show that the Veteran's bilateral hearing loss did not occur during his first period of active duty from September 1979 to December 1979 and preexisted his second period of active duty from January 2003 to October 2003. An enlistment examination in July 1979 revealed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 25 15 15 LEFT 20 15 20 25 30 An examination in December 1979 revealed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 25 -- 15 LEFT 20 15 20 -- 30 In this case, there is no difference in the Veteran's puretone thresholds prior to his first period of active duty beginning in September 1979 and the end of that period in December 1979. Although the decibels at 3000 Hertz were not reported in December 1979, the remaining frequencies stayed the same. A VA examiner in November 2011 opined that there was an absence of a negative threshold shift in either ear when the July 1979 and December 1979 examinations were compared. There is no indication that the Veteran complained of any hearing difficulties during this period of service. He specifically denied having ear trouble and hearing loss in his July 1979 and December 1979 reports of medical examination. The totality of the evidence fails to show that the onset of any current bilateral hearing loss occurred during the Veteran's first period of service. No medical professional has reported that the onset of any current bilateral hearing loss began during the Veteran's first period of active military service. There is also no medical evidence of the manifestation of sensorineural hearing loss within a year of separation of his first period of service. There are no audiological evaluations until December 1983, four years after his first period of service. The Veteran has not contended having bilateral hearing loss within one year from his first period of service. For example, in his March 2005 claim, the Veteran reported that the onset of his bilateral hearing loss occurred in 1996. There is no evidence of a bilateral hearing loss disability as defined by VA within one year of his first period of active duty; no medical professional has provided any opinion indicating that the Veteran had bilateral hearing loss as defined by VA within a year of separation of his first period of service. Although the evidence reflects a current bilateral hearing loss disability as defined by VA, it does not show that such disability is related to the Veteran's first period of active duty. A December 2005 VA examiner opined that the Veteran's military noise exposure was as likely as not a contributing factor to his hearing loss. This opinion did not include a review of the claims file. The rationale included the fact that a 2001 audiologic evaluation showed a mild hearing loss. However, as the examiner did not have the opportunity to review the Veteran's STRs, the Board in its February 2011 remand concluded that this opinion was not adequate. A private audiological evaluation dated in March 2011 shows that the Veteran's bilateral hearing loss was opined to be most likely caused by or a result of his noise exposure while serving in the military. The examiner noted that typically noise induced hearing loss was initially characterized poorer hearing thresholds at 4000 Hertz and 6000 Hertz, but with prolonged and/or repeated noise exposure, the hearing loss progressed involving other frequencies. Although the Veteran continued to work in law enforcement and industry outside of the military, the hearing protection he described using was sufficient to protect his hearing. However, the private audiologist's opinion was not focused solely on the Veteran's first period of active duty in which he reported that his only noise exposure was firing weapons in basic training. In this case, as discussed above, the Board has only conceded in-service acoustic trauma during the Veteran's second period of service. There is insufficient evidence to conclude that the Veteran incurred acoustic trauma during his first period of active duty from September 1979 to December 1979. To the extent that the private audiologist's opinion includes consideration of the Veteran's conceded acoustic trauma during his second period of active duty, the Board finds that it lacks probative value as to whether the Veteran's bilateral hearing loss is due to his first period of active service. Additionally, the November 2011 VA examiner opined that the Veteran's bilateral hearing loss was not at least as likely as not caused by or a result of an event in military service. The Board will discuss this examiner's opinion in more detail below. In sum, there is no nexus evidence relating any currently diagnosed bilateral hearing loss to the Veteran's first period of active service. Accordingly, the evidence does not support a finding that the Veteran's bilateral hearing loss is the result of his first period of service. Rather, the evidence showed that the Veteran's bilateral hearing loss was incurred between his two periods of active duty. The pertinent evidence of record shows that his bilateral hearing loss preexisted his second period of active service in 2003. Audiological evaluations during his National Guard service prior to his period of active duty beginning in January 2003 show a gradual worsening of his hearing acuity. All of the evaluations below include reports of medical examination in which the Veteran denied ear trouble or hearing loss. A periodic examination in December 1983 revealed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 15 30 25 15 LEFT 30 20 25 25 35 A quad examination in April 1988 revealed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -- 5 25 10 5 LEFT -- 5 20 25 20 A retention examination in March 1992 revealed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -- 25 35 40 35 LEFT -- 5 20 25 40 An annual examination in May 1996 revealed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -- 5 25 20 25 LEFT -- 10 25 30 40 A periodic examination in January 2001 revealed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 30 20 15 LEFT 15 15 30 25 40 As the Veteran was shown to have right ear hearing acuity of 40 decibels at 3000 Hertz and left ear hearing acuity of 40 decibels at 4000 Hertz in March 1992, a bilateral hearing loss disability as defined by VA was shown at that time. Although evaluations after that do not show a hearing loss disability as defined by VA in the right ear, they do continue to show a left ear hearing loss disability. Furthermore, as regards the right ear, elevated thresholds are shown suggesting some degree of hearing loss. The Board observes that the thresholds for normal hearing are 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley at 157 (citing Schroeder et al. eds., Current Medical Diagnosis & Treatment, 1988, pages 110-111). In this case, the Board finds that the presumption of soundness has been rebutted by clear and unmistakable evidence that the Veteran had bilateral hearing loss prior to his second period of active service. The Veteran himself in his initial claim indicated that his bilateral hearing loss began in 1996, which preexisted his second period of active service. The Board acknowledges that the Veteran's STRs do not include any audiological examinations at entrance from his second period of active duty in 2003. However, after reviewing the Veteran's claims file, the November 2011 examiner opined that Veteran's hearing loss existed prior to service. Considering the Veteran's own statements of the date of onset, the service examinations, and the VA examiner's opinion, the Board concludes that clear and unmistakable evidence has been presented sufficient to rebut the presumption of soundness. The evidence also shows that the Veteran's bilateral hearing loss clearly and unmistakably was not worsened during his second period of active duty. The November 2011 VA examiner opined that the Veteran's preexisting bilateral hearing loss was not aggravated beyond normal progression in military service. The rationale was that the Veteran reported that he was considered "active duty" military from September 1979 to December 1979 and January 2003 to October 2003. The Veteran's enlistment physical in July 1979 showed normal hearing thresholds in the right ear from 500 to 4000 Hertz and a normal sloping to mild hearing loss in the left ear from 500 to 4000 Hertz. The Veteran's release from active duty physical dated in December 1979 showed a normal sloping to mild rising to normal hearing loss in the right ear from 500 to 4000 Hertz and a mild rising to normal sloping to mild hearing loss in the left ear. A negative significant thresholds shift was not calculated when those examinations were compared. An examination dated in December 1983 showed normal hearing thresholds in both ears from 500 to 4000 Hertz. An examination in January 2001 showed a normal sloping to mild rising to normal hearing loss in the right ear from 500 to 4000 Hertz and a normal sloping to mild rising to normal sloping to mild hearing loss in the left ear from 500 to 4000 Hertz. When the January 2001 examination was compared to the audiologic test results obtained today, a negative threshold shift was not calculated in either ear. Based on the absence of a negative threshold shift in either ear when the Veteran's January 2001 and November 2011 examinations were compared, the Veteran's current bilateral hearing loss was less likely as not related to or caused by his military noise exposure. The pertinent medical evidence that has been presented shows a current diagnosis of bilateral hearing loss; however, the evidence does not contain a medical opinion indicating that the Veteran's preexisting bilateral hearing loss was aggravated by his second period of active duty. The only medical opinion provided regarding whether the Veteran's preexisting bilateral hearing loss was aggravated by his second period of service is that of the November 2011 VA examiner which weighs against the claim. The Board acknowledges that at a private audiological evaluation in March 2011, a positive nexus opinion was provided. At that examination, the Veteran reported his acoustic trauma during his second period of active duty. He also reported having his hearing tested every four years while in service, which showed a gradual loss of hearing. The audiologist opined that the Veteran's bilateral hearing loss was most likely caused by or a result of his noise exposure while serving in the military. The examiner noted that typically noise induced hearing loss was initially characterized poorer hearing thresholds at 4000 Hertz and 6000 Hertz, but with prolonged and/or repeated noise exposure, the hearing loss progressed involving other frequencies. In addition, secondary noise effects could develop after termination of noise exposure. Although the Veteran continued to work in law enforcement and industry outside of the military, the hearing protection he described using was sufficient to protect his hearing. However, the Board finds that this opinion lacks probative value compared to the November 2011 VA examiner's opinion. The private audiologist did not discuss whether the Veteran's bilateral hearing loss, which occurred prior to his second period of service, was aggravated by that period of service. There is no indication that the private audiologist reviewed the Veteran's examinations that showed the progression of his hearing loss. Although the Veteran clearly reported such progression to the audiologist, the Board finds that the VA examiner's opinion, which compared the Veteran's January 2001 hearing acuity to his current hearing acuity, is more probative as to the question of whether the Veteran's preexisting bilateral hearing loss was aggravated by his second period of active service. The probative medical evidence simply fails to adequately establish any nexus between current bilateral hearing loss and the Veteran's periods of service. Without competent evidence of an association between bilateral hearing loss and his active duty, service connection for bilateral hearing loss is not warranted. Although as a lay person, the Veteran is competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, the etiology of bilateral hearing loss falls outside the realm of common knowledge of a lay person. See Jandreau at 1377 n.4 (lay persons not competent to diagnose cancer). As such, his own assertions as to etiology have no probative value. In summary, bilateral hearing loss was not present during the Veteran's first period of service, was not manifested within a year of discharge from this period of service, and the currently diagnosed bilateral hearing loss did not develop as a result of any incident during his first period of service. Bilateral hearing loss clearly and unmistakably preexisted the Veteran's second period of service and the bilateral hearing loss clearly and unmistakably was not permanently worsened beyond normal progression during or as a result of the second period of service. Accordingly, the Board concludes that bilateral hearing loss was not incurred or aggravated in service. 2. Tinnitus The Veteran's STRs do not show any treatment for, or diagnosis of, tinnitus. As mentioned above, throughout his service, he repeatedly denied having ear trouble. At a December 2005 VA examination, the Veteran reported his conceded in-service acoustic trauma. For his civilian occupation as a state law enforcement officer, he wore hearing protection when qualifying using a pistol. He denied any recreational noise exposure. The Veteran reported bilateral tinnitus since 1996. He could not relate the tinnitus to any specific incident or accident; however, he felt that the noises during the military did contribute to the tinnitus. The examiner opined that it was as likely as not that the Veteran's military noise exposure was a contributing factor to his tinnitus. The examiner indicated that the Veteran's claims file was not reviewed. As such, the Board in February 2011 concluded that this examination was not adequate. In his June 2006 notice of disagreement, the Veteran reported that his tinnitus was directly related to his conceded in-service acoustic trauma in 2003. A private July 2006 audiological evaluation shows that he reported bilateral tinnitus; no opinion regarding the etiology was provided. At his November 2010 hearing, the Veteran testified that he believed that his noise exposure in 2003 worsened his tinnitus. November 2010 Hearing Transcript (T.) at 11. A private audiological evaluation in March 2011 reveals that the Veteran reported his conceded in-service acoustic trauma. He reported experiencing tinnitus since returning from service. Following examination, the Veteran's tinnitus as opined to be more likely caused by or a result of his noise exposure while serving in the military. The audiologist reported that the hearing protection the Veteran wore occupationally in law enforcement was sufficient to protect his hearing. In addition, secondary noise effects could develop after termination of noise exposure. The Veteran was afforded a VA examination in November 2011. He reported recurrent tinnitus first noticed between 2003 and 2005. Following examination, the examiner opined that they could not provide a medical opinion regarding the etiology of the Veteran's tinnitus without resorting to speculation. Based on the large amount of time that the Veteran reported that he possibly first noticed his tinnitus, the examiner could not resolve the issue of whether the Veteran's tinnitus was caused by or a result of his military noise exposure without resort to mere speculation. In this case, the Veteran has provided different onset dates for his tinnitus. In his claim, he indicated that it began in 1996, which was not during a period of active duty. However, in his notice of disagreement, he reported that it began in 2003, while he reported to the November 2011 examiner that it occurred between 2003 and 2005. To the extent that the Veteran indicated having tinnitus prior to his second period of active duty, the Board observes that there is no indication that he had a preexisting tinnitus disability prior to his second period of active duty. Since the Veteran's other statements during this appeal place the onset of his tinnitus during his second period of active duty, the Board concludes that clear and convincing evidence sufficient to rebut the presumption of soundness has not been provided. Therefore, when affording the Veteran the benefit-of-the-doubt, the Board concludes that the Veteran's reports establish that his tinnitus began during his second period of service when he had in-service acoustic trauma. The Veteran is competent to report experiencing tinnitus that began in service. Layno v. Brown, 6 Vet. App. 465 (1994). The Board also finds the Veteran to be credible. After reviewing all of the evidence, the Board finds the Veteran's assertions that the onset of his tinnitus was in his second period of service are both competent and credible. The Board observes that, in some instances, lay evidence may be sufficient to establish a nexus. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (rejecting view lay person is not competent to provide testimony regarding nexus). In this case, the Veteran has provided a competent and credible report of having tinnitus since in-service acoustic trauma. Therefore, the Board finds that the Veteran's reports alone are sufficient to establish a nexus. In addition to the Veteran's reports of a nexus, the March 2011 private audiologist also provided a positive opinion based upon an examination of the Veteran that included his reported history. Considering this opinion in addition to the Veteran's reports of tinnitus beginning in service, the evidence supports of a finding that the Veteran has tinnitus related to his military service. Therefore, in considering the Veteran's competent and credible contentions, the presence of a current tinnitus disability, the March 2011 private opinion, as well as the pertinent medical evidence of record, and in affording the Veteran the benefit-of-the-doubt, the Board finds that it is at least as likely as not that the Veteran has tinnitus that was incurred in service. The evidence is in favor of the grant of service connection for tinnitus. Service connection for tinnitus is granted. 38 U.S.C.A §5107. ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is granted. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs