Citation Nr: 18146689 Decision Date: 11/01/18 Archive Date: 10/31/18 DOCKET NO. 15-46 299 DATE: November 1, 2018 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. FINDINGS OF FACT 1. The probative and competent evidence of record is in equipoise as to whether the Veteran’s bilateral hearing loss disability was incurred in or related to military service. 2. The probative and competent evidence of record is in equipoise as to whether the Veteran’s tinnitus was incurred in or related to military service. CONCLUSIONS OF LAW 1. Affording the Veteran the benefit of the doubt, the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.385 2. Affording the Veteran the benefit of the doubt, the criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.304 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1952 to November 1953. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay 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. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). 1. Entitlement to service connection for bilateral hearing loss. The Veteran contends that his bilateral hearing loss was caused by his active service while serving in combat operations as a demolitions expert in the Korean war. 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 at 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, or 4000 Hertz 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. Even though disabling hearing loss is not demonstrated at separation, a veteran may, nevertheless, establish service connection for a current hearing disability by submitting evidence that a current disability is related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). Turning to the evidence of record, the Veteran served in the Korean War with the 120th ENGR C BN. The Veteran submitted several statements that he was a demolitions expert. In the Veteran’s statements, he describes being near an attack where an artillery shell exploded near him that was close enough that it knocked him and other soldiers “into a mountainside.” The Veteran also stated that he was exposed to other artillery explosions while in active service that has caused his hearing loss and tinnitus. In March 2015, the National Personnel Records Center (NPRC) made a determination that the Veteran’s service treatment records and most of his military records were destroyed in a July1973 fire and therefore not available. In cases where records once in the hands of the government are lost, the Board has a heightened obligation to consider carefully the benefit-of-the-doubt rule where applicable. See O’Hare v. Derwinski, 1 Vet. App. 365 (1991). A September 2015 VA examination yielded results that meet the criteria for a hearing loss disability for VA compensation purposes. The examiner did not provide an opinion, however, indicating that to do so would require mere speculation due to the Veteran’s age and history of noise exposure both before and after service. Based on the evidence of record, the Board finds the Veteran’s lay statements that his hearing loss started when he was exposed to artillery fire and explosions during combat operations in the Korean War to be to be competent, credible, and probative. The evidence of record demonstrates that the Veteran currently has a bilateral hearing loss disability; that his duties during service involved exposure to hazardous noise; and that he has experienced bilateral hearing loss since service. Consequently, service connection for bilateral hearing loss is granted. 38 U.S.C. § 5107(b).   2. Entitlement to service connection for tinnitus. The Veteran contends that his tinnitus was caused by his active service while serving in combat operations as a demolitions expert in the Korean war. Considering his documented duties as a demolition expert in service, noise exposure is conceded. Because tinnitus is “subjective,” its existence is generally determined by whether or not the Veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). The Board finds the Veteran credible with regard to his claim of incurrence of tinnitus in service and continuity of tinnitus since service. The Veteran participated in combat operations while serving in Korea. The Veteran’s separation examination reports are not available for review. After the September 2015 VA examination, the examiner reported that the Veteran’s tinnitus began twenty years prior was intermittent and only lasted three to six hours in duration. The Board finds the Veteran’s written statements that tinnitus began during service and has continued since are competent, credible, and probative. Notwithstanding the negative September 2015 opinion, the Board finds that the record reasonably supports the claim. The evidence of record demonstrates that the Veteran currently has tinnitus; that his duties during service involved exposure to hazardous noise; and that he has experienced tinnitus since service. (Continued on the next page)   Consequently, service connection for tinnitus is granted. 38 U.S.C. § 5107(b). M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Perkins, Michael