Citation Nr: 19136149 Decision Date: 05/09/19 Archive Date: 05/09/19 DOCKET NO. 17-40 488 DATE: May 9, 2019 ORDER Entitlement to bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran’s bilateral hearing loss had its onset during active service. 2. The Veteran’s tinnitus had its onset during active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1112, 1154, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.385, 3.307, 3.309. 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 1154, 5107(b); 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 United States Army from September 1968 to September 1971 including combat service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Service Connection 1. Entitlement to service connection for hearing loss is granted. 2. Entitlement to service connection for tinnitus is granted. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Consistent with this framework, service connection may also be granted for a disease first diagnosed after discharge 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 addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including organic diseases of the nervous system such as sensorineural hearing loss and tinnitus, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101 (3), 1112(a)(1); 38 C.F.R. § 3.307 (a), 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 272 (2015). The option of establishing service connection through a demonstration of continuity of symptomatology is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In the case of a veteran who engaged in combat with the enemy during active service during a period of war, VA will accept lay evidence of in-service incurrence of a disease or injury, if the lay evidence of onset is consistent with the circumstances, conditions, or hardships of the veteran’s service, notwithstanding the lack of documentation of this in-service incurrence. See 38 U.S.C. § 1154(b). Further, not only is the combat injury presumed, but also the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). For 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, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the above frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007) (upholding the validity of 38 C.F.R. § 3.385 to define hearing loss for VA purposes). The threshold for normal hearing is from 0 to 20 dB; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 157 (1993). Here, the May 2015 VA examination report establishes bilateral hearing loss for VA compensation purposes. 38 C.F.R. § 3.385. The same audiological examination also reflects a diagnosis of tinnitus, which the Veteran is competent to report. Thus, the first element of service connection has been established. Regarding the second element of service connection, there is some question as to whether the Veteran’s bilateral hearing loss pre-existed service, as the Veteran asserted on his pre-induction examination that he had hearing loss. Critically, the Veteran’s pre-induction examination report did not meet VA’s criteria for a hearing loss disability pursuant to 38 C.F.R. § 3.385. Thus, the presumption of soundness attaches in the instant case. See McKinney v. McDonald, 28 Vet. App. 15 (2016) (because the degree of hearing loss noted on an entrance examination did not meet VA’s definition of a “disability” for hearing loss under § 3.385, the presumption of soundness under 38 U.S.C. § 1111 attaches); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Further, the Veteran’s service treatment records show that he complained of hearing loss in June 1969, and he has consistently reported that he engaged in combat prior to and during the appeal period, specifically noting that he served in foxholes, that he was exposed to explosions in Vietnam of sufficient force to “blow” him out of his living quarters on one occasion, that he was shot at and otherwise exposed to incoming ordinance. See August 1970 VA examination report, August 2015 Notice of Disagreement (NOD), and July 2017 VA Form 9. The Board finds that his reported in-service acoustic trauma is consistent with the circumstances of his combat service as a wheeled vehicle mechanic in Vietnam. 38 U.S.C. § 1154(b). Thus, the combat presumption attaches, and it is presumed that he incurred hearing loss and tinnitus during active service due to his presumed in-service combat noise injury. See Reeves at 999. Thus, the second element of service connection has been established regarding bilateral hearing loss and tinnitus. Regarding the final element of service connection, nexus, the May 2015 examiner, in determining that the Veteran’s hearing loss and tinnitus did not have their onset during active duty, relied solely on the absence of hearing loss at discharge and concluded that there were no significant shifts in acuity thresholds found in the service treatment records. In providing this opinion, the examiner failed to acknowledge that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits at separation. Hensley, 5 Vet. App. at 159. Furthermore, the May 2015 examiner did not consider the Veteran’s presumed acoustic trauma and incurrence of hearing loss due to the same during his combat service or the complaint of hearing loss in service. Critically, the examiner relied on audiograms from active service which did not test all frequency ranges contemplated under 38 C.F.R. § 3.385, specifically the 3000 Hz range. Even though other frequencies reflect normal hearing, it is possible that the missing frequency could have been 40dB or higher (thereby establishing a hearing loss disability for purposes of § 3.385). Thus, the May 2015 VA examiner’s opinion is afforded no probative value. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in determining probative value of a medical opinion is whether the examiner was informed of the relevant facts). Contrarily, the Board finds the Veteran’s report of an onset of hearing loss and tinnitus during his combat service that has continuously worsened over time both competent and credible, particularly given his in-service complaint of difficulty hearing. See August 2015 NOD and July 2017 Form 9. In sum, the presumption of in-service acoustic trauma and hearing loss and tinnitus, and the Veteran’s report of a continuity of hearing loss and tinnitus since service all weigh in favor of a nexus between the current hearing loss and tinnitus disabilities and conceded in-service acoustic trauma. Reeves, supra. Accordingly, reasonable doubt is resolved in the Veteran’s favor and entitlement to service connection for bilateral hearing and tinnitus loss is granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). See also 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Rouse, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.