Citation Nr: 1801058 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 14-17 491 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for right ear sensorineural hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Brad Farrell, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from July 1969 to May 1971, including service in the Republic of Vietnam. The Veteran's service decorations include the Combat Infantry Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated September 2010 of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In May 2013, the Veteran perfected a timely substantive appeal. The Veteran requested a Board video-conference hearing, which was scheduled to be held at the RO on September 5, 2014. However, the record reflects that the Veteran did not appear for the hearing, apparently because he had moved to Florida, which resulted in his untimely receipt of the VA hearing notice letter. The Board recognizes that the Veteran's representative requested in September 2014 that the hearing be postponed. However, as the grant of benefits sought in the Veteran's claims for service connection for right sensorineural hearing loss and tinnitus satisfies the claims in full, the Veteran will not be prejudiced by the Board rendering a decision without further delay. FINDINGS OF FACT 1. The Veteran's service personnel records show that his military occupational specialty (MOS) was infantryman and he was awarded the Combat Infantry Badge (CIB) for active combat service in the Republic of Vietnam; thus, his in-service exposure to significant acoustic trauma is presumed. 2. The evidence is at least evenly balanced as to whether the Veteran's right sensorineural hearing loss is related to in-service noise exposure. 3. The evidence is at least evenly balanced as to whether the Veteran's tinnitus is related to in-service noise exposure. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, right sensorineural hearing loss was incurred in service. 38 U.S.C. §§ 1110, 1154(b), 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017). 2. With reasonable doubt resolved in favor of the Veteran, tinnitus was incurred in service. 38 U.S.C. §§ 1110, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection The Veteran seeks service connection for tinnitus and right sensorineural hearing loss, which he attributes to acoustic trauma in service. 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 military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (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 current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When a veteran has engaged in combat with the enemy, satisfactory lay or other evidence "shall be accepted as sufficient proof of service connection" for certain diseases or injuries, even if "there is no official record of such incurrence or aggravation in such service." 38 U.S.C. § 1154(b). This statute does not eliminate the need for evidence of a nexus; it merely reduces, for veterans who have engaged in combat with the enemy, the burden of presenting evidence of incurrence or aggravation of an injury or disease in service. Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996) ("Section 1154(b) does not create a statutory presumption that a combat veteran's alleged disease or injury is service-connected"). Hearing loss is considered to be a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition thresholds using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Here, a September 2010 VA audiological examination report reflects that the Veteran was diagnosed with right sensorineural hearing loss as defined by VA and with tinnitus. Id. Hence, current right ear hearing loss and tinnitus disabilities have been demonstrated. The Veteran asserts that his right ear hearing loss and tinnitus are related to his active service. In particular, he indicates that both were incurred in service as a result of exposure to loud noises from firing his M-16 rifle and anti-tank weapons during combat. See Statement in Support of Claim dated April 2010; Letter from Veteran dated September 2014. In this regard, there is no medical evidence of hearing loss or tinnitus in the service treatment records or for many years thereafter. However, the Veteran's DD Form 214 shows that he received the CIB, and that his military occupational specialty (MOS) was infantryman. Thus, the Veteran is presumed to have engaged in combat with the enemy. See VA Adjudication Procedures Manual, M21-1, Part IV.ii.1.D.1.e (updated Mar. 31, 2017) (listing decorations that are evidence of combat participation, to include the CIB); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). Such acoustic trauma due to combat and other noise exposure has been accepted as satisfying the in-service disease or injury element of claims for hearing loss and tinnitus. See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012); Hensley v. Brown, 5 Vet. App. 155, 160 (1993). Based on the foregoing, and by applying 38 U.S.C. § 1154(b), the Veteran has satisfied the in-service injury element of his claims. The remaining issue is thus whether the current hearing loss and tinnitus are related to the acoustic trauma. The fact that the claimed cause of the Veteran's hearing loss and tinnitus, i.e., acoustic trauma from firing an M-16 rifle and anti-tank gunnery in service, has been established by his statements does not prevent him from also invoking the section 1154(b) presumption in order to show that he incurred the disabilities themselves while in service. See Reeves, 682 F.3d at 999. The Board finds that, given the application of 38 U.S.C. § 1154(b) as explained in Reeves, the Veteran's lay statements along with the other evidence above provides a sufficient basis to conclude that his current hearing loss and tinnitus are related to the acoustic trauma he suffered in service. The Board notes that the Veteran underwent a VA examination in September 2010, in which the VA examiner opined that the Veteran's hearing loss and tinnitus were less likely as not caused by or as a result of his military noise exposure. However, as to hearing loss, this opinion accorded great weight to the fact that the Veteran had normal hearing upon separation, and it is therefore flawed because normal hearing upon separation is not necessarily fatal to a claim for service connection for hearing loss. See Hensley, supra; 38 C.F.R. § 3.303(d). The examiner may not provide a negative opinion based solely on the absence of hearing loss during service. In addition, as to both claims, the VA examiner did not address the fact that the Veteran had combat service and did not address the Veteran's competent lay statements of having had hearing difficulty and ear ringing since such service. Based on this body of evidence, the evidence is thus at least evenly balanced as to whether the Veteran's current right ear hearing loss and tinnitus are related to his military service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for right ear hearing loss and tinnitus are warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for right ear sensorineural hearing loss is granted. Entitlement to service connection for tinnitus is granted. ______________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs