Citation Nr: 1807991 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 14-26 280 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD L. Nelson, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from August 1968 to August 1969. He is a combat Veteran of the Vietnam War and is in receipt of the Combat Infantryman Badge. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran and his spouse appeared at a videoconference hearing before the undersigned Veterans Law Judge in December 2016. A transcript of that hearing has been prepared and is associated with the file. Of note, the Veteran initially submitted a Notice of Disagreement (NOD) in October 2010, disagreeing with the denial of service connection for hearing loss and tinnitus, as well as disagreeing with the initial evaluation assigned to his service-connected PTSD. However, on the VA Form 9, Substantive Appeal submitted in July 2014, the Veteran specifically limited his appeal to the Board to the issues of hearing loss and tinnitus. Accordingly, the only issues on appeal before the Board are service connection for bilateral hearing loss and tinnitus. The record before the Board consists solely of electronic records within Virtual VA and the Veterans Benefits Management System (VBMS). FINDINGS OF FACT 1. The Veteran's bilateral sensorineural hearing loss is etiologically related to his active service. 2. The Veteran's tinnitus is etiologically related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral hearing loss disability have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309 (2017). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In cases where a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C.A. § 1154(b) (2012) and its implementing regulation, 38 C.F.R. § 3.304(d) (2011), are applicable. This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence. If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that in the case of a combat Veteran not only is the combat injury presumed, but so is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). To establish service connection, however, there must be the evidence of a current disability and a causal relationship between the current disability and the combat injury. Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran seeks service connection for bilateral hearing loss and tinnitus, which he contends began in service and has been recurrent since that time. The Veteran testified that he was an Infantry soldier in Vietnam and carried the M-60 machine gun for a year. In addition to repeated weapon's firing noise exposure, he stated he was exposed to repeated helicopter noise. He testified that he had no hearing protection. His spouse testified that he spoke loudly upon his return from Vietnam and repeatedly asked her to repeat what she said, which has been ongoing since that time. All three elements of service connection are established by the competent and credible lay and medical evidence of record. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Veteran has a diagnosis of bilateral hearing loss, reports ongoing tinnitus and suffered acoustic trauma when exposed to extreme loud noise in service while performing his duties as an infantryman and machine gunner. Further, the competent and credible evidence of record shows that his current bilateral hearing loss and tinnitus began during service and have been recurrent since that time. The Veteran reported that he first noticed hearing loss and tinnitus within months of returning from Vietnam, and that it has gotten worse over the years. The Veteran is competent to report the onset and continuation of his hearing loss and tinnitus symptoms and the Board finds his testimony credible. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); see also Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board notes that the May 2009 VA examiner opined that it would be speculative to opine whether the Veteran's hearing loss began in service as the separation physical appeared to be invalid ("whenever the separation physical shows all '0' thresholds, I question the validity of that information.") The examiner nonetheless concluded that it was less likely than not that the Veteran's hearing loss began in service, as the Veteran had worked in construction after service. However, the Veteran testified that he was an electrician and came to projects after the heavy construction was completed, and that he was not exposed to loud construction noise. The Board finds that the examiner's conclusion relied on a factual error and is therefore less probative. Accordingly, as the evidence shows that the Veteran's bilateral hearing loss and tinnitus had their onset in service, service connection is warranted. See Flynn v. Brown, 6 Vet. App. 500, 503 (1994). ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted ____________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs