Citation Nr: 18142731 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 16-11 093 DATE: October 16, 2018 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT Resolving reasonable doubt in the Veteran’s favor, he was exposed to acoustic trauma as part of his military occupational specialty (MOS) and his current bilateral hearing loss and tinnitus are etiologically related to such service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2018). 2. The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1968 to May 1970. This matter comes before the Board of Veterans’ Appeals (Board) from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. A Notice of Disagreement was submitted in April 2013; a Statement of the Case was issued in February 2016; and a VA Form 9 was received in March 2016. The Board notes that the Veteran has contended that the April 2013 rating decision contains clear and unmistakable error (CUE). See July 2013 Statement from Veteran. Under 38 C.F.R. § 3.105 (a), a prior final decision of the VA can be reversed or amended where the evidence establishes CUE in the decision; however, because the April 2013 rating decision is currently on appeal, it is not a final decision that could be subject to a CUE claim. See Link v. West, 12 Vet. App. 39, 44-45 (1998) (holding that CUE claim does not exist, as a matter of law, where there is no prior final RO decision); see also Best v. Brown, 10 Vet. App. 322, 325 (1997). Therefore, the issue of CUE in a rating decision is not on appeal before the Board. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection, the following must be shown: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Service Connection Analysis for Hearing Loss The Veteran contends that his currently diagnosed sensorineural bilateral hearing loss is due to noise exposure during service. Specifically, he asserts that he sustained acoustic trauma in association with his duties as a combat engineer, to include as a result of small arms fire, automatic weapons, and friendly/enemy bombardment, and while working with high explosives while in the Republic of Vietnam. At the outset, the Board notes the April 2014 VA audiological examination demonstrates a current bilateral hearing loss diagnosis in accordance with 38 C.F.R. § 3.385. Additionally, the Veteran’s DD Form 214 shows that his MOS was that of a combat engineer, which the military has deemed to be at high probability of exposure to acoustic trauma. Moreover, the Veteran has competently and credibly reported that he was exposed to excessive noise, to include in combat-related situations, while serving in this capacity in Vietnam. See 38 U.S.C. § 1154 (a), (b) (2012). Thus, in-service acoustic trauma (“injury”) is established here. The remaining issue for consideration here is whether the Veteran’s currently diagnosed bilateral hearing loss is related to the in-service noise exposure. In the April 2014 VA audiology examination, the examining audiologist opined that the Veteran’s bilateral hearing loss was less likely than not related to military noise exposure. The reasoning for his conclusion was that the Veteran’s hearing had been normal at entrance and separation. The Board does not find the April 2014 VA opinion to be probative. As an initial matter, the examiner entirely failed to address the Veteran’s MOS and his reports of in-service acoustic trauma while working in a combat environment as a combat engineer. Moreover, the lack of any evidence showing that the Veteran exhibited hearing loss consistent with the regulatory threshold requirements for hearing loss disability during service (38 C.F.R. § 3.385]) is not fatal to his claim. The laws and regulations do not require in-service complaints of, or treatment for, hearing loss to establish service connection. Ledford v. Derwinski, 3 Vet. App. 87 (1992). Where there is no evidence of hearing disability until many years after service, “[i]f evidence should sufficiently demonstrate a medical relationship between the appellant’s in-service exposure to loud noise and his current disability, it would follow that the appellant incurred an injury in service.” Hensley v. Brown, 5 Vet. App. 155 (1993). In this case, the Veteran has competently and credibly reported that his audiological symptoms commenced proximate to his Vietnam service (see, e.g., April 2014 VA Hearing Loss/Tinnitus Examination). The evidence otherwise establishes that the Veteran had a high probability of noise exposure in service due to his combat engineer MOS. Considering this, as well as his credible lay history of having hearing loss since service, the lack of documented intercurrent acoustic trauma, and the finding of hearing loss disability under 38 C.F.R. 3.385, the Board finds that the competent evidence is in relative equipoise as to whether hearing loss may be related to active service. Accordingly, resolving reasonable doubt in his favor, the Board concludes that service connection for bilateral hearing loss is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, supra. Service Connection Analysis for Tinnitus The Veteran likewise contends that his tinnitus is directly related to acoustic trauma sustained in association with his duties as a combat engineer, to include as a result of small arms fire, automatic weapons, friendly/enemy bombardment, and working with high explosives while in the Republic of Vietnam. The medical record demonstrates a current tinnitus diagnosis (see April 2014 VA audiological examination) and, as discussed above, in-service acoustic trauma (“injury”) has been conceded in this case. The VA April 2014 VA examiner opined that there were no significant threshold shifts in-service and, thus, it was less likely than not that the Veteran’s tinnitus was the result of military noise exposure. Given that the VA examination did not consider reported chronicity, in conjunction with the Veteran’s in-service noise exposure, his combat engineer MOS and duties associated therewith, his credible lay statements of chronic tinnitus since service, and affording him the benefit of the doubt, the Board finds that service connection for tinnitus is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, supra. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Hoeft, Counsel