Citation Nr: 18140688 Decision Date: 10/05/18 Archive Date: 10/05/18 DOCKET NO. 16-33 922 DATE: ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran has a bilateral hearing loss disability that is at least as likely as not attributable to service. 2. The Veteran has tinnitus that is at least as likely as not attributable to service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, the criteria for an award of service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). 2. Resolving reasonable doubt in the Veteran’s favor, the criteria for an award of service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from June 1967 to June 1969 and from September 1971 to September 1974, to include service in Vietnam from October 1968 to May 1969 and October 1971 to August 1972. His decorations include the Vietnam Service Medal and Combat Infantryman Badge. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from September 2014 and March 2015 rating decisions issued by the Department of Veteran’s Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Service Connection The Veteran seeks to establish service connection for bilateral hearing loss and tinnitus. He maintains that both disabilities can be attributed to in-service noise exposure. 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 service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Specific to claims for service connection for hearing loss, impaired hearing is considered a “disability” for VA purposes only when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; when the thresholds for at least three of these 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. If a Veteran serves 90 days or more of active, continuous service after December 31, 1946, and manifests certain chronic diseases—including sensorineural hearing loss and tinnitus—to a degree of 10 percent or more during the one-year period following his separation from that service, service connection for the condition may be established on a presumptive basis, notwithstanding that there is no in-service record of the disorder. See 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). If a Veteran engaged in combat with the enemy during active service, lay or other evidence of service incurrence or aggravation of an injury or disease alleged to have been incurred in or aggravated by such service will be accepted as sufficient proof of service connection if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, VA will resolve every reasonable doubt in favor of a Veteran. 38 U.S.C. § 1154(b). The Federal Circuit has held that this “combat presumption” applies not only to establishing the potential cause of a disability, but also to whether the disability itself was incurred while in service. Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). However, 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, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran’s present condition (e.g., whether the Veteran’s present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Service connection for bilateral hearing loss is granted. 2. Service connection for tinnitus is granted. In the present case, there is no dispute that the Veteran has a current bilateral hearing loss disability as defined by VA. The report of a September 2014 VA audiometric examination clearly reflects, among other things, that he has Maryland CNC speech recognition scores of less than 94 percent, bilaterally. The report also reflects that he suffers from tinnitus. Nor is there any real dispute that the Veteran was exposed to hazardous noise during service. The Veteran’s DD Form 214 lists his military occupation specialty (MOS) as light weapons infantryman and the record clearly reflects that he engaged in combat with the enemy during service in Vietnam, inasmuch as he received the Combat Infantryman Badge. He has stated that he was exposed to excessive noise during service, and his statements in that regard are wholly consistent with the circumstances, conditions, and hardships of his combat service. As to the nexus, or link, between the Veteran’s disabilities and service, the Board notes that the Veteran is competent to provide statements with respect to the onset and presence of tinnitus and diminished hearing, inasmuch as such symptoms are observable by a layperson. The Board finds, moreover, that his statements with respect to onset in service are credible, particularly in light of the fact that the audiometric test results recorded at the time of his service separation examination in September 1974 were limited to the frequencies of 500, 1000, 2000, and 4000 Hertz. Further, pursuant to the holding in Reeves, his credible statements may be used to establish not only the presence of acoustic trauma during service, but also the presence of tinnitus and hearing loss themselves. The Board acknowledges that the VA audiologist who examined the Veteran in September 2014 offered an unfavorable opinion with respect to nexus. The Board notes, however, that the examiner’s opinion was based, at least in part, on an assumption that is not fully supported by the record; namely, that the Veteran had normal hearing at the time of his separation from service. As noted above, the test results recorded at that time were limited to select frequencies. Moreover, inasmuch as both tinnitus and sensorineural hearing loss are recognized as chronic diseases, they can be service-connected on the basis of continuity of symptomatology alone, without a medical nexus opinion. See, e.g., Walker, supra. On balance, and taking into account the totality of the evidence—including the Veteran’s combat service, his credible statements with respect to onset of symptoms, the lack of audiometric test results at all relevant frequencies at the time of his separation examination in September 1974—the Board is persuaded that the criteria for service connection for bilateral hearing loss and tinnitus have been met. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 C.F.R. § 3.102. The appeal is granted. DAVID A. BRENNINGMEYER Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Boyea, Law Clerk