Citation Nr: 1756812	
Decision Date: 12/08/17    Archive Date: 12/15/17

DOCKET NO.  14-09 295	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1. Entitlement to service connection for bilateral hearing loss.

2. Entitlement to service connection for tinnitus.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

C. O'Donnell, Associate Counsel

INTRODUCTION


The Veteran served on active duty in the United States Navy from September 1967 to July 1971.    

This matter comes before the Board of Veteran's Appeals (Board) on appeal from a November 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.    

In July 2017, the Veteran testified before the undersigned at a video-conference Board hearing.  A transcript of the hearing is associated with the claims file.

This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system.  


FINDINGS OF FACT

1. The Veteran's bilateral hearing loss is at least as likely as not causally related to his military service.  

2. The Veteran's current tinnitus is at least as likely as not the result of an in-service event or injury.  


CONCLUSIONS OF LAW

1. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for a bilateral hearing loss disability have been met. 38 U.S.C. §§ 1101, 1112, 1131 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).

2. Resolving reasonable doubt in favor of the Veteran, the criteria for entitlement to service connection for tinnitus have been met.  38 U.S.C. §§ 1101, 1112, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Establishing direct service connection generally requires competent evidence of: (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.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  However, where the preponderance of the evidence is against the claim, the claim for benefits must be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996).

The Board finds that the evidence of record supports a grant of service connection for bilateral hearing loss and tinnitus.  First, there is evidence of a current disability.  A November 2011 VA examination report diagnosed bilateral sensorineural hearing loss, and audiometric testing revealed a hearing loss disability that meets the criteria under 38 C.F.R. § 3.385.  See 38 C.F.R. §§ 3.303(a).   Further, the Veteran has indicated that he has tinnitus.  See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that lay testimony may establish the presence of tinnitus because ringing in the ears is capable of lay observation).  

Second, there is evidence of an in-service event, disease, or injury, as the Veteran provided competent and credible lay statements regarding noise exposure in service. See 38 C.F.R. § 3.303(a); 38 U.S.C. § 1154(b); Shedden, 381 F.3d at 1167. Specifically, the Veteran reported that he was exposed to noise from jet engines and catapults while serving on an aircraft carrier, and that he did not utilize hearing protection.  See November 2011 VA examination.  Additionally, the Board notes that the Veteran's DD Form 214 reflects that the Veteran was an aviation ordinance mechanic.  Thus, the Board finds that the Veteran has competently and credibly reported in-service noise exposure. 

Third, the Board finds that the evidence is at least in equipoise as to whether the Veteran's current bilateral hearing loss and tinnitus are related to service.  In that regard, the law is clear.  Pursuant to the "benefit-of-the-doubt" rule, where there is "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. 38 U.S.C. § 5107 (West 2014).  The Board acknowledges that there is evidence against the claim.  In that regard, a November 2011 VA examiner opined that it was less likely than not that the Veteran's bilateral hearing loss disability, and tinnitus were related to service.  However, a September 2017 opinion submitted by the Veteran's private physician assistant is supportive of the claims, and includes a sufficient rationale.  See September 2017 Private Medical Records. Further, the Veteran provided a statement from his brother, who stated that it was evident the Veteran's hearing loss began following his separation from service.  See July 2017 Lay Statement.  Also, with regard to tinnitus, the Veteran testified at his July 2017 hearing before the Board that he had experienced ringing in his ears since his time in service, and that such ringing had been continuous since service. See July 2017 Board Hearing Transcript at 6-7.  

The Board therefore concludes that, with the benefit of the doubt resolved in the Veteran's favor, a grant of service connection for bilateral hearing loss and tinnitus is warranted.  See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) ("[T]he 'benefit of the doubt' standard is similar to the rule deeply embedded in sandlot baseball folklore that 'the tie goes to the runner' . . . . [I]f . . . the play is close, i.e., 'there is an approximate balance of positive and negative evidence,' the veteran prevails by operation of [statute].").

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ORDER

Entitlement to service connection for bilateral hearing loss is granted.  

Entitlement to service connection for tinnitus is granted.  



____________________________________________
ANTHONY C. SCIRÉ, JR.
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs