Citation Nr: 18159667 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 15-16 376 DATE: December 19, 2018 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. FINDINGS OF FACT 1. The evidence is in relative equipoise as to whether the Veteran’s current bilateral hearing loss is related to in-service acoustic trauma. 2. The evidence is in relative equipoise as to whether the Veteran’s current is tinnitus are related to in-service acoustic trauma. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. 2. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1966 to May 1970, and his awards and decorations include the Combat Action Ribbon. The Veteran testified before the undersigned at a December 2018 Board hearing via video-conference; a hearing transcript is in the claims file. Service Connection Service connection for bilateral hearing loss and tinnitus. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. Establishing service connection generally requires competent medical or 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). In addition, certain chronic diseases, including sensorineural hearing loss and tinnitus (as organic diseases of the nervous system), may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, continuity of symptomatology may be established if a claimant can demonstrate: (1) that a condition was “noted” during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology under 38 C.F.R. § 3.303 (b); Barr v. Nicholson, 21 Vet. App. 303 (2007). Where a claimant asserts entitlement to a chronic condition but there is insufficient evidence of a diagnosis in service, he can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309 (a), including neurological disorders, including bilateral hearing loss and tinnitus. Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). In this case, the Veteran has been diagnosed with both bilateral sensorineural hearing loss and bilateral tinnitus on VA examination in July 2014. The audiogram preformed in conjunction with this VA examination report confirms that the Veteran has a current bilateral hearing loss disability for VA purposes, as he had bilateral puretone threshold levels in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz of 40 decibels or greater. See 38 C.F.R. § 3.385. The Veteran maintains that his current bilateral hearing loss and tinnitus are the direct result of noise exposure during active service. His service treatment records are silent for any complaint, treatment, or diagnosis of bilateral hearing loss and tinnitus, and no party asserts otherwise. In his November 2013 statement, the Veteran reported that worked in the engine room aboard the USS Hollister, exposed to noise from the reduction gears and shafts, as well as the high-speed noisy fans “blowing tons of air into the space trying to keep the temperature down.” During his December 2018 Board hearing, the Veteran reported that he experienced in-service audiological symptoms that have continued to the present, since separation from service. In this regard, the Veteran is competent under the law to describe what he experienced while in military service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that a Veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge); Barr, 21 Vet. App. 303, 307-08 (holding that lay testimony is competent to establish the presence of observable symptomatology); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson, 581 F.3d 1313. There is no indication that the Veteran is not credible in this regard, and his lay statements as to in-service noise exposure are probative evidence in the current appeal. Furthermore, his service separation form, his Form DD-214, indicates his military occupational specialty (MOS) was boiler operator, and that he was awarded the Combat Action Ribbon. In June 2015, the Veteran submitted a September 2010 VA document indicating that his MOS of boilerman involved a high probability of noise exposure. Consequently, exposure to acoustic trauma is certainly consistent with the circumstances, conditions, and hardships of the Veteran’s service. See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304 (d). See also Reeves v. Shinseki, 682 F.3d 988 (Fed. Cir. 2012). As such, the Veteran’s in-service hazardous noise exposure is established. Thus, there is competent and credible lay evidence of record that bilateral hearing loss and tinnitus occurred following acoustic trauma during the Veteran’s active service and have continued to progress since that time. See Reeves, 682 F.3d at 998-99 (holding that, in the case of a combat Veteran, not only is the combat injury presumed, but so is the disability due to the underlying injury). The Board acknowledges that there is a negative etiological opinion of record in the form of the July 2014 VA examination report; however, the Board declines to accept this opinion, as the examiner did not have the opportunity to consider the Veteran’s December 2018 Board hearing testimony as to in-service and post-service continued audiological symptoms. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Therefore, the July 2014 VA opinion is inadequate to deny entitlement to service connection. In sum, the Veteran has competently and credibly reported a continuity of symptomatology of bilateral hearing loss, and also of additional bilateral ear pathology in the form of tinnitus, during and since his active service. See Charles v. Principi, 16 Vet. App. 370 (2002); Jandreau, 492 F.3d at 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). See also Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001). This report of a continuity of symptomatology suggests a link between his current bilateral hearing loss and tinnitus and service. 38 U.S.C. §§ 1101, 1110, 1112; 38 C.F.R. § 3.309; Walker, 708 F.3d 1331, at 1337-39, see also Duenas v. Principi, 18 Vet. App. 512 (2004). Accordingly, the Board finds that the evidence for and against the claims is at least in equipoise. When the evidence for and against the claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C. §§ 1154 (b); 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Therefore, the benefit of the doubt must be resolved in favor of the Veteran and entitlement to service connection for bilateral hearing loss and tinnitus is warranted. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Purdum