Citation Nr: 18161324 Decision Date: 12/31/18 Archive Date: 12/31/18 DOCKET NO. 15-01 039 DATE: December 31, 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 all reasonable doubt in favor of the Veteran, the Veteran’s bilateral hearing loss is related to his in-service noise exposure. 2. Resolving all reasonable doubt in favor of the Veteran, the Veteran’s tinnitus is related to his in-service noise exposure. CONCLUSIONS OF LAW The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a), 3.385 (2018). The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from April 1970 to December 1971. This appeal to the Board of Veteran’s Appeals (Board) arose from a January 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office. The Veteran has perfected a timely appeal. See October 2014 Notice of Disagreement; October 2014 Statement of the Case (SOC); December 2014 Substantive Appeal (VA Form 9). The Veteran requested a hearing before the Board. The requested hearing was conducted in July 2018 by the undersigned Veterans Law Judge. A transcript of the hearing is associated with the file. Service Connection A Veteran is granted service connection where evidence shows that an injury or disease that results in a current disability was incurred during service or was aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §3.303(a). To be entitled to service connection, the evidence must support (1) a current disability; (2) an in-service injury or event; and (3) a nexus between the current disability and the in-service injury or event. 38 C.F.R. §3.303(a). Service connection can also be granted for chronic disabilities, if the evidence establishes that it manifested to a compensable degree within one year after the Veteran was separated from service. 38 U.S.C. §1112; 38 C.F.R. §3.307, §3.309. Service connection for chronic disabilities can be established through a showing of continuity of symptomatology since service, as an alternative to the nexus requirement. 38 C.F.R. §3.303(b). This option is limited to chronic disabilities listed in 38 C.F.R. §3.309(a). When there is an approximate balance of positive and negative evidence regarding any material issues, the Secretary shall give the benefit of the doubt to the claimant. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for bilateral hearing loss and tinnitus. The Veteran contends that his hearing loss and his tinnitus are due to his military duties while in service. The evidence of the record establishes a current disability of hearing loss according to VA standards. See June 2013 VA Examination. The evidence also establishes that the Veteran suffers from recurrent tinnitus. See June 2013 VA Examination; January 2013 Audiology Report. Regarding an in-service injury and event, in the March 2013 statement in support of the claim, the Veteran contends he was part of the mechanical mortar crew and fired many rounds. While serving in the 5th mechanical infantry and 101st infantry, he experienced mortar and rocket attacks, firefights, landmines, and booby traps. In his September 2013 statement in support of the claim, the Veteran again stated his service in the infantries. He further expresses that his head would be at the top of the tube during fire missions. He stated that he shattered his eardrum in his right ear and had an infection in the right ear. He mentions that he received treatment at the air station. The Veteran states he was a rifleman in the 101st infantry. In the April 2018 statement in support of the claim, the Veteran added that he rode in Huey and Chinock helicopters and used grenade launchers. The Veteran expressed the same sentiments during the July 2018 hearing. During the hearing, he details being the driver of a personnel carrier while in the 5th infantry. He stated he had to turn the personnel carrier into the line of fire. He describes that when the machine gun would be fired, it would be fired directly above his head. He expresses having a hard time hearing as a result of the firefight. The Veteran’s Certificate of Release or Discharge from Active Service (DD-214) shows that the Veteran served in Vietnam from September 1970 to September 1971. He also received the Combat Infantry Badge. Sharpshooter and marksman were also noted as occupations. The service medical records reflect no mention of the Veteran’s contention of his ear rupture and infection. However, on his June 1971 separation examination, the Veteran notes having ear, nose and throat trouble. The Veteran is competent to report that he was exposed to loud noises during service. In addition, his statements as to in-service noise exposure is consistent with the circumstances of his combat service, and thus establishes his exposure to loud noise in service. See May 2013 VA 21-2507a Request for Examination. As to whether the Veteran’s hearing loss and tinnitus are related to his in-service exposure to loud noise, the Veteran underwent two VA examinations, in June 2013 and November 2013. In the June 2013 VA examination, the examiner noted that due to the lack of post-service noise exposure and the lack of evidence suggesting that his hearing was within normal limits at separation of service, it was at least likely as not that the current hearing loss is due to noise exposure while in service. The examiner opined that the Veteran’s tinnitus was at least as likely as not a result of military noise exposure. The examiner considered the noise exposure in-service and the Veteran’s statements that he has experienced symptoms for years. The Veteran’s service medical records were not available at the time of examination. In the November 2013 VA examination, the examiner had access to the Veteran’s service treatment records. This time, the examiner opined that the Veteran’s hearing loss is less likely as not due to his in-service noise exposure. The examiner stated that the entrance and separation examinations were found to show no significant threshold shift. The hearing was found to be well within normal limits at separation across a broad frequency range. The examiner noted that the Veteran has not worked in an occupational environment that is considered to have high noise exposure post-service, but he did have “recreational noise exposure”. The examiner concluded that due to the lack of threshold shift which occurred during service, that it was not likely that the Veteran’s current hearing loss was due to noise exposure during his service. The examiner opined that the Veteran’s tinnitus is less likely than not related to his service. The examiner stated because the Veteran’s current hearing loss could not be attributed to the noise exposure while in service, the tinnitus cannot be attributed to the noise exposure while in service. That notwithstanding, the Veteran has continuously contended that he began to experience problems with his hearing during his service. On his June 1971 separation examination, the Veteran does note that he has or had problems with his ears, nose, or throat. In a VA treatment record dated December 2012, the nurse noted that the Veteran expressed he had ringing in his ears since he was discharged from service. He has had gradual hearing loss in his right ear, and cannot hear the television if he lays on his left ear. The Veteran begin receiving hearing aids in 2013, as evidence by VA treatment records from June 2013 to September 2011. Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue"). Tinnitus is a condition for which the Veteran is uniquely situated to competently identify and report on the onset and duration of this condition. In the present case, there is nothing of record to call into question the credibility of the Veteran's assertions and the record help supports his reports of noise exposure. Again, it should be noted, that in-service noise exposure was conceded. After thorough consideration of the evidence above, the Board finds that the Veteran’s statements and testimony as to the onset and continuity of symptomatology regarding his hearing to be highly credible. His statements have been consistent with each other, his service records, his MOS, and post-service treatment records. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran’s hearing loss and tinnitus is due to his noise exposure during his military service. The Board finds that the criteria for service connection for the Veteran’s bilateral hearing loss and tinnitus have been met and entitlement to service connection is warranted. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Syesa Middleton, Associate Counsel