Citation Nr: 1751902 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 16-30 231 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio 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 WITNESSES AT HEARING ON APPEAL The Veteran and his sisters ATTORNEY FOR THE BOARD C. Samuelson, Counsel INTRODUCTION The Veteran served on active duty in the Army from July 1963 to June 1966. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. In September 2017, the Veteran filed claims for entitlement to service connection for diabetes mellitus type II due to Agent Orange exposure, renal insufficiency secondary to diabetes mellitus type II, and bilateral diabetic neuropathy of the lower extremities. These issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2016). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2016). FINDINGS OF FACT 1. Bilateral hearing loss had its onset during service. 2. Tinnitus had its onset during service. CONCLUSIONS OF LAW 1. Bilateral hearing loss was incurred in service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2016); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.385 (2017). 2. Tinnitus was incurred in service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2016); 38 C.F.R. §§ 3.102, 3.303, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran contends that his bilateral hearing loss and tinnitus began in service when he was exposed to rifle fire, 57 recoilless rifles, artillery and mortar fires, to specifically include an incident on February 2, 1966 where a mortar round exploded. He contends that he had ringing in his ears and difficulty hearing after the February 1966 incident in service and has had ringing in his ears since then. See September 2011 statement in support of claim; June 2012 notice of disagreement; July 2017 Board hearing transcript, pp. 4, 16; Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with active service in the Armed Forces; or, if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303(a); see Flynn v. Brown, 6 Vet. App. 500, 503 (1994) (noting that, in the context of service-connected disability compensation, "the element of cause and effect has been totally by-passed in favor of a simple temporal relationship between the incurrence of the disability and the period of active duty"). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as organic diseases of the nervous system, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. The Court has held that tinnitus is a disease, rather than merely a symptom, and that 38 C.F.R. § 3.309(a) "includes tinnitus, at a minimum where there is evidence of acoustic trauma, as an 'organic disease[] of the nervous system.'" Moreover, the Court indicated that, as such a presumptive condition, tinnitus warranted consideration of the continuity of symptomatology provisions found at 38 C.F.R. § 3.303(b). Fountain v. McDonald, 27 Vet. App. 258 (2015). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be 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, or 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 Veteran has a current diagnosis of left ear hearing loss for VA purposes. The Veteran has a current diagnosis of bilateral hearing loss for VA purposes under 38 C.F.R. § 3.385. See April 2012 VA examination; VA treatment records from September 2011 to January 2017. The Board acknowledges that the service treatment records show no evidence of a hearing loss disability or tinnitus and the April 2012 VA examiner provided a negative nexus opinion in regard to bilateral hearing loss and tinnitus. However, the Board finds that the Veteran is competent to report hearing loss and tinnitus since service and that his account of having these disorders since that time is credible. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran's account is corroborated by his sisters' testimony that he had difficulty hearing after his discharge from service. See July 2017 Board hearing transcript, pp. 11-17. As the requirements for establishing service connection are met, service connection is warranted for bilateral hearing loss and tinnitus. 38 C.F.R. § 3.303(a). ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs