Citation Nr: 18159720 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 15-18 661 DATE: December 20, 2018 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. 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 service. 2. The Veteran’s tinnitus is at least as likely as not related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2017). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1972 to May 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. Service Connection In general, establishing service connection requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran’s service as shown by such Veteran’s service record, the official history of each organization in which such Veteran served, such Veteran’s medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154 (a). In adjudicating a claim, the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Veteran is competent to provide facts about what he experienced; for example, he is competent to report that he engaged in certain activities in service and currently experiences certain symptomatology. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). The Board acknowledges that it cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan, 451 F.3d at 1337. However, such lack of contemporaneous evidence is for consideration in determining credibility. Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 1. Entitlement to service connection for bilateral hearing loss The Veteran asserts that his bilateral hearing loss is due to service. Specifically, the Veteran states that as an aircrewman he was exposed to loud noises. The Veteran’s military occupational specialty (MOS) was aviation aircrewman. Thus, the Board concedes noise exposure. The Board also concludes that the Veteran has a current diagnosis of bilateral hearing loss that is related service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). The requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 (2016) need not be shown by the results of audiometric testing during a claimant’s period of active military service in order for service connection to be granted. This regulation does not necessarily preclude service connection for hearing loss that first meets the regulation’s requirements after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Thus, a claimant who seeks to establish service connection for a current hearing disability must show, as is required in a claim for service connection for any disability, that a current hearing disability is the result of an injury or disease incurred in service, the determination of which depends on a review of all the evidence of record including that pertinent to service. 38 U.S.C. §§ 1110 and 1131; C.F.R. §§ 3.303 and 3.304 (2016); Hensley, 5 Vet. App. at 159-60. If medical evidence sufficiently demonstrates a medical relationship between the Veteran’s in-service exposure to loud noise and his current disability, it would follow that the Veteran incurred an injury in service and the requirements of 38 U.S.C. §§ 1110 are satisfied. Hensley, 5 Vet. App. at 160. Turning to the issue of nexus, a March 2012 private audiologist noted that the Veteran was exposed to high intensity noises during pre and post flight operations and maintenance of aircraft. The Veteran complained of hearing problems especially in a noisy area and watching television at home at normal loudness. He was also having constant loud noises in both ears for several years which was gradually getting worse over the period of time since he left service. The private audiologist found that hearing testing showed bilateral high tone sensorineural hearing loss involving 4K on both sides due to high intensity noise exposure during his service. In contrast, the examiner at the May 2013 VA examination found that the Veteran’s hearing loss was less likely as not caused by or a result of military service, namely noise exposure. The examiner reasoned that the first available audiogram in the Veteran’s file dated December 1973 revealed clinically normal hearing for 500-6000 Hz, bilaterally. The Veteran’s exit examination dated May 1978 revealed clinically normal hearing for 500-6000 Hz, bilaterally. The law is clear. Pursuant to the “benefit-of-the-doubt” rule, where there is “an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter,” the Veteran shall prevail upon the issue. 38 U.S.C. § 5107 (b) (2012). Here, upon weighing the evidence of record, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s bilateral hearing loss is related to service. The Board therefore concludes that, with the benefit of the doubt resolved in the Veteran’s favor, a grant of service connection for bilateral hearing loss is warranted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (“[T]he ‘benefit of the doubt’ standard is similar to the rule deeply embedded in sandlot baseball folklore that ‘the tie goes to the runner’.... [I]f... the play is close, i.e., ‘there is an approximate balance of positive and negative evidence,’ the veteran prevails by operation of [statute].”). 2. Entitlement to service connection for tinnitus The Veteran further contends that service connection is warranted for tinnitus. First, the Board finds competent evidence that the Veteran currently suffers from tinnitus. A layperson is capable of observing tinnitus. Charles v. Principi, 16 Vet. App. 370, 374 (2002). Here, the Veteran’s reports of chronic and ongoing tinnitus are well-documented throughout the record. Further, the Board finds competent evidence of in-service noise exposure, for those reasons set forth above. The Veteran indicated in his June 2013 notice of disagreement that his hearing loss and tinnitus issues had persisted since separation from service. The Veteran further asserted in an August 2013 statement that throughout the course of his time in service he could feel his hearing declining and he acquired a slight ringing in his ears that had increased over the years. Finally, the Board notes that the May 2013 VA examiner opined that the Veteran’s tinnitus was at least as likely as not a symptom associated with the hearing loss. The May 2013 VA examiner also opined that the Veteran’s tinnitus was less likely than not caused by or a result of military noise exposure. Thus, as the Board has granted bilateral hearing loss, the Veteran’s tinnitus is at least secondary to his bilateral hearing loss. Moreover, the Board notes the conflicting nexus opinions of record regarding direct service connection. However, given the subjective nature of tinnitus, the Veteran’s lay statements regarding his in-service onset of his tinnitus are competent and credible to support his claim. Therefore, resolving reasonable doubt, the Board also finds that the Veteran’s tinnitus is directly related to noise exposure. Hence, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s current tinnitus is related to his noise exposure during his active duty service. See Gilbert, supra. Service connection for tinnitus is, therefore, granted. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Saudiee Brown, Associate Counsel