Citation Nr: 18151923 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-05 375 DATE: November 20, 2018 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. INTRODUCTION The Veteran served on active duty from March 1964 to March 1966. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. The Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of this hearing will be associated with the claims file. The Veteran’s original claim of entitlement to service connection for bilateral hearing loss was denied in a January 2009 rating decision. Despite receiving notice of this decision and notice of his appellate rights, he did not perfect an appeal and new and material evidence was not received during the ensuing appeal period. As such, the January 2009 rating decision is final. Since the January 2009 rating decision, the Veteran has testified and submitted a statement from his spouse. The Veteran asserted that he experienced lay ongoing, observable symptoms of hearing loss and tinnitus following his active duty. The Veteran’s spouse also submitted a statement wherein she described anecdotal evidence indicative of hearing disability (e.g., repeating speech, Veteran stating he could not hear her, and Veteran endorsing ringing in his ears) throughout his post-service life. Further, the Veteran asserted that he did not undergo audiological testing consequent to his separation from active duty, despite the reported results. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (holding that, in determining whether a veteran’s statements are new and material, the credibility of the evidence was presumed); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that a veteran’s statements are competent evidence of what comes to him/her through his/her senses). The Board finds that this evidence is new and material evidence sufficient to reopen the claim. See 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The Board will address the merits of this claim herein. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his bilateral hearing loss is at least as likely as not related to in-service noise exposure. 2. Resolving reasonable doubt in the Veteran’s favor, his tinnitus is at least as likely as not related to in-service noise exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.385. 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Generally, service connection may be granted on a direct basis 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. The evidence of record demonstrates a current diagnosis of both bilateral hearing loss and tinnitus. 38 C.F.R. § 3.385; see Degmetich v. Brown, 104 F.3d 1328, 1333 (1997). Additionally, service records show that the Veteran was assigned to B Battery, 1st Battalion, 5th Artillery. Accordingly, the evidence establishes that he was exposed to acoustic trauma during his active duty. The salient question presented by the Veteran’s claim is whether his current bilateral hearing loss and tinnitus are etiologically related to his in-service noise exposure. Pursuant to his original claim of entitlement to service connection for bilateral hearing loss, the Veteran underwent a VA audiological examination in December 2008. Ultimately, the examiner rendered a diagnosis of bilateral hearing loss, but concluded that it was “not cause by or a result of military noise exposure.” The brief rationale for the examiner’s opinion acknowledges that the Veteran was exposed to artillery fire during his active duty and that his spouse reported his complaints of decreased hearing acuity, but the rationale appears to be predicated on the Veteran’s inability to pinpoint the onset of his bilateral hearing loss and the audiometric results reported upon his separation from active duty, which the examiner indicated were normal, bilaterally. Pursuant to the claim before the Board, the Veteran asserted that he did not undergo audiological testing consequent to his separation from active duty. Indeed, comparing the puretone threshold results obtained during his induction examination to those allegedly obtained during his separation examination shows, not just disparity, but a considerable improvement, bilaterally, despite the Veteran’s documented exposure to acoustic trauma during his active duty. Further, all tested frequencies remarkably yielded the same puretone threshold, zero decibels. These results are dubious, at best. The Board finds the Veteran’s assertion that he did not undergo audiological testing upon his separation from active duty to be more competent and credible than the reported results of the separation audiological test. Based on the above, the December 2008 VA examiner’s opinion is predicted, at least in part, on evidence that the Board has determined to be incorrect. As such, the Board assigns no probative value to the December 2008 VA examiner’s etiological opinion. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (holding that medical opinions based on incomplete or inaccurate factual premise are not probative). As mentioned above, the evidence establishes the presence of bilateral hearing loss and tinnitus, and that the Veteran sustained acoustic trauma in active service. The Veteran and his spouse have competently and credibly reported decreased hearing acuity and ringing in his ears since service, worsening over time. Layno, 6 Vet. App. at 469. Therefore, the Board finds that the evidence of record is at least in equipoise as to whether the Veteran’s bilateral hearing loss and tinnitus are etiologically related to his active duty. Accordingly, reasonable doubt must be resolved in the Veteran’s favor and entitlement to service connection for bilateral hearing loss and tinnitus is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Sean G. Pflugner, Counsel