Citation Nr: 18145681 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 15-18 255 DATE: October 29, 2018 ORDER 1. Service connection for bilateral hearing loss is granted. 2. Service connection for tinnitus is granted. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran’s bilateral hearing loss disability is related to in-service acoustic trauma. 2. The evidence is at least evenly balanced as to whether the Veteran’s tinnitus is related to in-service acoustic trauma. CONCLUSIONS OF LAW 1. The criteria for service connection for hearing loss disability have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2018). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Vietnam era in the Army from October 1966 to October 1968. This case comes before the Board from a rating decision dated April 7, 2011, in which the Regional Office (RO) denied service connection for bilateral hearing loss and tinnitus. The Veteran contends that his current bilateral hearing loss and tinnitus are the result of loud noise exposure during combat service in Vietnam. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §1110, 1131; 38 C.F.R. § 3.303 (a). “To establish a right to compensation for a present disability, a Veteran must show: “(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”- the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A hearing loss disability is defined for VA compensation purposes with regard to audiologic testing involving puretone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385. For 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 of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. 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”). The Veteran’s DD-215 indicates that he was awarded the Combat Infantry Badge. This indicates that he was engaged in combat. See VA Adjudication Procedures Manual, IV.ii.1.D.1.e (updated March 31, 2017) (list of Decorations that are evidence of combat participation). While the Manual is not binding, DAV v. Sec’y of Veterans Affairs, 859 F.3d 1072, 1077 (Fed. Cir. 2017) (“The M21-1 Manual is binding on neither the agency nor tribunals”), in this case it is simply a recognition by VA that certain medals denote combat service. The statements of the Veteran, a light weapons infantryman, are therefore sufficient to show acoustic trauma due to combat, and the in-service injury element of the claims for service connection for hearing loss and tinnitus have therefore been met. See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). Moreover, the fact that the claimed cause of the Veteran’s hearing loss and tinnitus, i.e., acoustic trauma from exposure to gunfire during combat service, is therefore 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. Reeves, 682 F.3d at 999. The Veteran’s service treatment records are silent for any complaints or treatment for hearing loss or tinnitus, and his medical examination and history reports show normal hearing at the time of entrance into service and upon discharge. In October 2017 the Veteran completed a VA hearing examination to determine the severity of his hearing loss. The examiner noted the Veteran’ puretone thresholds at 500, 1000, 2000, 3000, and 4000 Hz were 15, 20, 60, 85, 85 for the right ear respectively. For the left ear, only the 500, 1000, and 2000 Hz thresholds could be tested, and the Veteran was listed as 45, 65, 65 respectively. According to the administering doctor, frequencies 3000, 4000, 6000, and 8000 Hz could not be tested because the Veteran’s hearing loss exceeded the capabilities of the equipment. Additionally, the Veteran’s speech discrimination score was 96 percent for the right ear, and 36 percent for the left ear. These audiometric and speech scores meet the threshold set out in 38 C.F.R. § 3.385 (2018) for hearing loss. Given the application of 38 U.S.C. § 1154(b) as explained in Reeves, the Veteran’s lay testimony along with the other evidence above regarding the Veteran’s duties in service provides a sufficient basis to conclude that his current hearing loss disability and tinnitus are related to the acoustic trauma he suffered in service. The Board notes the October 2017 VA examiner’s opinion that the Veteran’s hearing loss and tinnitus are not related to service because he had normal hearing at entrance and upon separation. This opinion is flawed because normal hearing upon separation is not necessarily fatal to a claim for service connection for hearing loss disability. Ledford v. Derwinski, 3 Vet. App. 87 (1992). The evidence is thus at least evenly balanced as to whether the Veteran’s current bilateral hearing loss and tinnitus are related to his in-service acoustic trauma. 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 bilateral hearing loss and tinnitus is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Laura A. Saracina, Law Clerk