Citation Nr: 1756437 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 14-18 640 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: John Dorrity, Agent WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Acosta, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1997 to June 1977 with National Guard service thereafter. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2011 rating decision of the Newark, New Jersey Regional Office (RO) of the Department of Veterans Affairs (VA). In August 9, 2016, the Veteran presented sworn testimony during a Video-Conference Board hearing that was presided over by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. FINDINGS OF FACT 1. Tinnitus is etiologically related to acoustic trauma sustained in active service. 2. Bilateral hearing loss is etiologically related to acoustic trauma sustained in active service CONCLUSIONS OF LAW 1. Tinnitus was incurred in active service. 38 U.S.C.A. §§ 1101, 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016). 2. Bilateral hearing loss was incurred in active service. 38 U.S.C.A. §§ 1101, 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Assist and Notify Since the Board is granting the Veteran's appeals there is no need to discuss whether the Veteran has received sufficient notice or assistance with regard to these claims, given that any error would be harmless. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1131 (West 2014); 38 C.F.R. § 3.303 (2016). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2015); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims decided herein. (CONTINUED ON NEXT PAGE) Merits - Tinnitus The Veteran has asserted that he has tinnitus as a result of acoustic trauma sustained while in active service. Specifically, the Veteran has reported acoustic trauma in the form of explosions, artillery fire, and gunfire. A review of the Veteran's service separation form shows that his military occupational specialty (MOS) while in active service was in artillery. Therefore, the Board concedes the Veteran's exposure to acoustic trauma while in active service. A review of the service medical records is silent for treatment for or a diagnosis of tinnitus while the Veteran was in active service. However, the Veteran has reported that he first experienced tinnitus while in active service and has continued to experience tinnitus since his separation from active service. The Veteran is competent to report when he first experienced tinnitus and that the symptoms have continued since service. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, the Board finds the Veteran to be credible. The Board notes that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F .3d 1331 (Fed. Cir. 2006). The Veteran is competent to identify tinnitus and his statements have been found credible. In sum, the Board has conceded acoustic trauma during active service. The Veteran has competently reported that he first experienced tinnitus while in active service and that he has continued to experience it since that time and those statements have been found credible by the Board. Accordingly, the Board finds that the evidence for and against the claim of entitlement to service connection for tinnitus is at least in equipoise. Therefore, reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for tinnitus is warranted. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Merits - Bilateral Hearing Loss In a July 2011 VA examination, the Veteran was diagnosed with bilateral hearing loss. The Veteran produced a service treatment record from February 1998 wherein a clinician wrote, following an auditory test results, "[h]earing loss due to artillery." The Veteran has been provided a diagnosis of hearing loss by both a VA examiner and within service. Moreover, the clinician in service etiologically linked the Veteran's hearing loss to his service. The Board finds that the evidence supports the Veteran contention and service connection for bilateral hearing loss is warranted. ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for bilateral hearing loss is granted. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs