Citation Nr: 18159737 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 14-37 100 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. The evidence is in relative equipoise as to whether the Veteran’s current bilateral hearing loss is related to in-service noise trauma. 2. The evidence is in relative equipoise as to whether the Veteran’s current tinnitus is related to in-service noise trauma. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, the criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. Resolving reasonable doubt in the Veteran’s favor, the criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Marine Corps from August 1967 to February 1970. His awards and decorations include the Combat Action Ribbon and the Naval Unit Commendation. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, WA. Service Connection Service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing, (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, which are listed in 38 C.F.R. § 3.309(a), including organic diseases of the nervous system (to include sensorineural hearing loss and tinnitus), may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309; see also Fountain v. McDonald, 27 Vet. App. 258 (2015) (where there is evidence of acoustic trauma, the presumptive provisions of 38 C.F.R. § 3.309(a) include tinnitus as an organic disease of the nervous system). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. Id. However, if chronicity in service is not established or where the diagnosis of chronicity may be legitimately questioned, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). A claimant “can benefit from continuity of symptomatology to establish service connection in the ultimate sense, but only if [the] chronic disease is one listed in § 3.309(a).” Walker, 708 F.3d at 1337. Service connection may nonetheless be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 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. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1. Vet. App. at 54. The Veteran seeks service connection for bilateral hearing loss and tinnitus. It is his contention that both disabilities are the direct result of his exposure to loud noises during his active duty service. See December 2011 Statement in Support of Claim. Specifically, the Veteran contends that he was exposed to noise trauma from artillery, mortars, rocket-propelled grenades, recoilless rifles, and small arms fire while he was serving in Vietnam. See July 2013 VA Examination. 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); Barr v. Nicholson, 21 Vet. App. 303, 307-308 (2007). Furthermore, his Form DD-214 indicates his service duty military occupational specialty (MOS) was a machine gunner (0331) in support of combat operations in the Republic of Vietnam, and that he was awarded the Combat Action Ribbon and the Naval Unit Commendation. The Board has no reason to dispute the Veteran’s credible lay statements concerning in-service noise exposure, as his MOS and combat service would reasonably include regular exposure to noise trauma. See 38 U.S.C. 1154(b); 38 C.F.R. 3.304(d); Reeves v. Shinseki, 682 F.3d 988 (Fed. Cir. 2012). The VA audiological report drafted in August 2013 after the Veteran’s July 2013 examination confirms that the Veteran has been diagnosed with both bilateral sensorineural hearing loss for VA purposes (see 38 C.F.R. § 3.385) and bilateral tinnitus. Thus, there is sufficient evidence of current disabilities. Regarding the question of whether the Veteran’s current bilateral hearing loss and tinnitus is related to his in-service noise trauma, the August 2013 medical opinion is against both claims. The audiologist opined that the Veteran’s hearing loss was less likely as not caused by or a result of military noise exposure because the “Veteran’s report of the onset of hearing loss (1995) was decades after separation from military service.” Similarly, the audiologist opined that the Veteran’s tinnitus was less likely than not caused by or a result of military noise exposure because the “Veteran’s report of the onset of the tinnitus (2008) was decades after separation from military service as well as [his] report of intermittent momentary tinnitus is consistent with the general population’s report of infrequent tinnitus, which is typically considered as ‘normal.’” However, the Veteran contends that the VA examiner misunderstood and misconstrued his reporting of the hearing loss onset. See October 2014 Statement in Support of Claim. The Veteran explained that he feels he has always experienced hearing loss and tinnitus since his active duty service, but that his spouse brought it to his attention as a problem in 1995. Due to the misunderstanding regarding the onset of the Veteran’s auditory disabilities, the Board finds the audiologist’s nexus opinion to be of diminished probative value. Furthermore, while the Veteran’s service entrance examination exists in his claims file, several service treatment records (STRs) are missing, including his separation examination. A formal finding on the unavailability of the Veteran’s STRs exists in his claims file. In light of the Veteran’s assertions concerning the onset of his auditory disabilities, there is no medical evidence contradicting the Veteran’s statements. The Board observes that hearing loss and tinnitus are subjective and the type of conditions to which lay testimony is competent. In this regard, the Board finds the Veteran’s assertions concerning in-service noise exposure and continuity of auditory symptomatology since service to be consistent and credible. It is thus plausible that the Veteran has suffered from bilateral hearing loss and tinnitus since his conceded noise exposure during active service. Notably, there is no evidence of any potential source of noise exposure post service. In light of the foregoing, including the Veteran’s in-service duty assignment, the acknowledged in-service noise exposure, credible lay statements, the current finding of bilateral hearing loss for VA purposes and tinnitus, as well as the diminished probative value of the VA examiner’s opinion regarding the onset and continuity of hearing loss and tinnitus, the Board resolves all reasonable doubt in the Veteran’s favor and finds that his bilateral hearing loss and tinnitus are as likely as not causally related to noise exposure during active service. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 54 (1990). A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Griffin, Associate Counsel