Citation Nr: 1808783 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 14-14 113 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD J. I. Tissera, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1967 to August 1969. These matters come to the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. A Board hearing was held in October 2016. A transcript is of record. FINDINGS OF FACT 1. The Veteran's bilateral hearing loss had its onset in service. 2. The Veteran's tinnitus had its onset in service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for tinnitus are met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection In general, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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 (Fed. Cir. 2004). Service connection for certain listed chronic diseases may be awarded on a presumptive basis and will be presumed to have been incurred during active service, even though there is no evidence of the disability during service, if such disability became manifest to a compensable degree within one year of separation from active duty. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. 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. If chronicity in service is not established, a showing of continuity of symptoms after separation from service is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also 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). An alternative method of establishing the second and third elements of service connection for those disabilities identified as a "chronic condition" under 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303 (2007). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303(b). Additionally, any disability which is proximately due to, or results from, another disease or injury for which service connection has already been granted shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). A. Bilateral Hearing Loss In the instant case, there is no question that the Veteran has hearing loss for VA purposes. See February 2011 VA Examination Report; 38 C.F.R. § 3.385 (2017). The Veteran has also credibly testified that he sustained acoustic trauma when he was exposed to artillery and rifle fire without hearing protection while in service in Vietnam. He further contends that his hearing difficulty had its onset in service and has continued to the present. The Veteran's spouse also submitted a statement noting that she noticed a definite difference in his hearing when he returned home on emergency leave in August 1968. She also testified at the October 2016 hearing that she noticed the Veteran's hearing problems immediately after separation from service, before the Veteran returned to his civilian job. The Board finds the statements of the Veteran and his spouse which indicate continuity of hearing loss symptoms from service to the present to be highly credible. The only evidence against the claim is the opinion of the February 2011 VA examiner. The examiner found that the Veteran's hearing loss was less likely than not related to service. The February 2011 examiner's findings are entitled to little probative value for at least two reasons. First, the examiner's opinion was based largely on the entrance and exit exams that were within normal limits. This alone, however, is not fatal to the claim. See 38 C.F.R. § 3.303(d); Hensley v. Brown, 5 Vet. App. 155 (1993). Second, the examiner failed to take into consideration the credible statements from both the Veteran and his spouse that place the onset of hearing loss in service or within the initial post service year at the latest. In short, the most probative evidence of record indicates that the Veteran's hearing loss began in service and has continued to the present. Service connection is therefore warranted. See 38 C.F.R. § 3.303(b) (2017). B. Tinnitus The Veteran has credibly reported that his tinnitus began in service and has continued to the present. Tinnitus is a condition capable of lay observation and service connection is warranted on the basis of the Veteran's credible statements alone. ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ Donnie R. Hachey Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs