Citation Nr: 18156145 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 17-28 262 DATE: December 7, 2018 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran’s bilateral hearing loss is related to acoustic trauma that the Veteran experienced during his active military service. 2. The Veteran’s tinnitus had its onset during active military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.385. 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably with active duty service in the United States Army from July 1974 through July 1976. The Veteran offered testimony at a Travel Board hearing before the undersigned Veterans Law Judge in November 2018. This decision is being prepared under the Board’s “one-touch” program, and a transcript of the Veteran’s hearing is not yet available. Such a transcript will be added to the Veteran’s file under the normal course of business. Service Connection Generally, to establish service connection there must be competent evidence showing: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the in-service injury incurred or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including sensorineural hearing loss and tinnitus, may be presumed to have been incurred in or aggravated by service if manifested to a compensable degree within one year of discharge from service. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). 1. Entitlement to service connection for bilateral hearing loss is granted. The Veteran seeks service connection for bilateral hearing loss. For purposes of applying the laws administered by VA, impaired hearing is 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 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 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Service connection for impaired hearing is only established when audiometric testing meets the specified pure tone and speech recognition criteria. 38 C.F.R § 3.385 does not preclude service connection for a current hearing loss disability where hearing was within normal limits on audiometric testing at separation from service. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Rather, when audiometric test results at a veteran’s separation from service do not meet the requirements of 38 C.F.R. § 3.385, a veteran may nevertheless establish service connection for current hearing disability by submitting medical evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). Here, the record contains medical documentation establishing that the Veteran currently suffers from a bilateral hearing loss disability as defined by 38 C.F.R. § 3.385. See November 2013 VA examination; March 2017 Private Medical Opinion. The Veteran reported being exposed to high noise exposure in the military during his duty in Greece and Fort Sill. He reported working as a missile crewman, and had to emergency destruct with shape charges. He reported mating warheads to rockets, and firing rockets to be a ready expert on the job. May 2017 VA Form 9. The Veteran’s Form DD214 Report of Separation from Active Duty confirms this specialty, and the Veteran is considered to have experienced the claimed exposure to hazardous noise. The March 2017 private medical opinion was completed by a doctor of audiology, who indicated that the Veteran’s hearing was assessed. The clinician confirmed the Veteran’s bilateral moderately-severe sensorineural hearing loss. After review of the Veteran’s service treatment records, an interview with the Veteran, and the examination, the clinician opined that it was at least as likely as not that the Veteran’s hearing loss was caused by or contributed to by noise exposure during his military service. The VA examiner did provide a negative nexus opinion in April 2014, which was considered, but the evidence of record is at least in relative equipoise as to whether there is a nexus between the current bilateral hearing loss disability and the Veteran’s service. As such, service connection is warranted and hereby granted. 38 C.F.R. § 3.102, 3.303, 3.385. 2. Entitlement to service connection for tinnitus is granted. The Veteran contends that he is entitled to service connection for tinnitus. As outlined below, the evidence of record demonstrates that it is at least as likely as not that the Veteran’s tinnitus manifested as a result of active military service. Tinnitus is a condition which is capable of lay observation. Charles v. Principi, 16 Vet. App. 370, 374-375 (2002). The Veteran credibly asserts that his current tinnitus began during service. As tinnitus is a subjective phenomenon, the Veteran is competent to report the history of its onset and that it has been continuously present since service. Further, the March 2017 private medical opinion confirmed the diagnosis of tinnitus, and provided an opinion that the Veteran’s tinnitus was at least as likely as not related to his active military service. (Continued on next page) Resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for tinnitus is warranted. 38 C.F.R. § 3.102. The claim of entitlement to service connection for tinnitus is granted. 38 C.F.R. § 3.303. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. C. King, Associate Counsel