Citation Nr: 1801244 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 16-09 331 ) 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 Veteran represented by: The American Legion ATTORNEY FOR THE BOARD S. S. Mahoney, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from July 1958 to August 1960, with additional periods of Reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision of the of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran's bilateral hearing loss had its onset in service. 2. The Veteran's tinnitus had its onset in service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1131, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran asserts that his bilateral hearing loss and tinnitus are due to acoustic trauma exposure in service while shooting at the rifle range without hearing protection, and that his right ear is more damaged because it is the ear closest to the weapons he was firing. He maintains that he had no hearing protection during active duty but did wear hearing protection at his civilian occupations. See February 2016 VA Form 9. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The option of establishing service connection through a demonstration of continuity of symptomatology is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a), which includes sensorineural hearing loss and tinnitus. See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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, or 4000 Hertz (Hz) 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. Initially, the Board finds that the presumption of soundness is for application, despite the Veteran's July 1958 record of induction, where he stated that he was hard of hearing. On his July 1958 enlistment examination, he denied having ear trouble, and upon clinical evaluation no hearing loss disability was noted pursuant to 38 C.F.R. § 3.385. See McKinney v. McDonald, 28 Vet. App. 15 (2016). While the Veteran is competent to report the symptoms he observes, he is not competent to diagnose a hearing loss disability, as he does not have the appropriate expertise. There is no other evidence indicating the presence of a hearing loss disability prior to enlistment. Accordingly, the Board finds no clear and unmistakable evidence of a pre-existing hearing loss disability to rebut the presumption of soundness, and the Veteran is considered sound at entry. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Here, the Veteran has been diagnosed with bilateral hearing loss for VA purposes and is competent to report his tinnitus. 38 C.F.R. § 3.385; Charles v. Principi, 16 Vet. App. 370 (2002); June 2014 VA examination report. The Veteran's June 1960 examination at separation reflects his complaints of hearing loss and trouble in his right ear, and clinical evaluation revealed bilateral hearing loss pursuant to 38 C.F.R. § 3.385. As such, the first and second elements of service connection are established. Regarding the last element, nexus, the record contains both unfavorable and favorable evidence. Against the claim is the opinion of the June 2014 VA audiologist, who was unable to provide an opinion on hearing loss or tinnitus without resorting to speculation based on the Veteran's history of occupational noise exposure post service and noted there was "no discharge exam." However, as noted above, the separation examination is of record and documents the Veteran's bilateral hearing loss during active duty service. Therefore, this opinion is of no probative value, as it is based on an inaccurate factual premise. Moreover, the Board emphasizes that hearing loss pursuant to 38 C.F.R. § 3.385 was first evidenced during active duty. Additionally, in a February 2016 statement Dr. R.C. opined that the Veteran's bilateral hearing loss had its onset in service. Although the opinion is not supported by rationale, Dr. R.C. notes consideration of the Veteran's service record. Regarding tinnitus, the Board finds that the Veteran has competently and credibly reported that he has experienced recurrent ringing in his ears since service. Resolving all reasonable doubt in his favor, service connection is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs