Citation Nr: 20007940 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 17-54 729 DATE: January 30, 2020 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. It is at least as likely as not that the Veteran’s bilateral hearing loss is due to his active duty service. 2. It is at least as likely as not that the Veteran’s tinnitus is due to his active duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.385. 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1966 to April 1968. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of January 2015 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota. Following the rating decision on appeal, the Veteran timely filed his notice of disagreement (NOD) in February 2015. The RO issued a statement of the case (SOC) in August 2017 and the Veteran’s timely appeal to the Board followed in October 2017. Because the Veteran declined to request a hearing in his appeal to the Board, no hearing before the undersigned VLJ was scheduled. 1. Entitlement to service connection for bilateral hearing loss and tinnitus. Service connection requires the existence of a present disability, the in-service incurrence or aggravation of a disease or injury, and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (2004). Service connection may be granted for any disease 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). For purposes of VA compensation, “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 frequencies 500, 1000, 2000, 3000, or 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. The Veteran underwent a VA examination on these issues in January 2015. During her assessment of the Veteran’s hearing loss, the VA examiner found the following pure tone decibel thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 15 25 35 75 80 LEFT 15 15 45 70 85 See January 2015 VA Examination Report at 1. The VA examiner also found speech discrimination scores of 94 percent bilaterally using the Maryland CNC Test. Id. at 2. Additionally, the VA examiner diagnosed the Veteran with sensorineural hearing loss and tinnitus. Id. at 3 and 7. The Board therefore finds that the first Shedden factor has been satisfied as to both issues. 38 C.F.R. §§ 3.303(a), 3.385. Furthermore, the VA examiner noted the Veteran’s history of noise exposure while on active duty, including close proximity to and use of vehicle-mounted weapons without hearing protection. See January 2015 VA Examination Report at 3; see also February 2015 Correspondence at 1 (asserting that “I rode upon an Army Personnel Carrier as a [sic] APC commander, with a 50-caliber machine gun, and two 60-caliber machine guns on either side of me”); see also July 2014 DD-214 (reflecting military occupational specialty of Light Weapons Infantryman and receipt of Combat Infantry Badge). The Board therefore finds the second Shedden factor has been met as to these issues as well. The Veteran asserts that he began experiencing these issues “upon my return from Viet Nam… and subsequent discharge from the Army[.]” See February 2015 Correspondence at 1. Additional lay witness testimony further corroborates the Veteran’s claim. See March 2015 Lay Statement of B.M. at 1 (asserting that when the Veteran “returned home from Viet Nam… I heard the first complaints of a ‘ringing/swishing’ in his ears”); see also March 2015 Lay Statement of J.S. at 1 (asserting that “upon [the Veteran’s] return [from Viet Nam]… [he] would verbally complain about the buzzing or ringing in his ears”). The VA examiner found that the Veteran’s tinnitus began “approximately five years ago[,]” or circa 2010. See January 2015 VA Examination Report at 7. The Board finds that this does not outweigh the credibility of the Veteran’s assertions because they are also supported by multiple corroborating lay witnesses. The Board therefore finds that it is at least as likely as not that the onset of the Veteran’s symptoms of tinnitus was “upon [his] return from Viet Nam” as he asserts. See 38 U.S.C. § 5107(b). “Lay evidence can be competent and sufficient to establish a diagnosis of a condition when… a layperson is competent to identify the medical condition… [or when] lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds that a lay witness is competent to identify tinnitus because the condition manifests as sounds perceptible to the witness experiencing the condition. “Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board[.]” Id. at 1376. The evidence supports the conclusion that it is at least as likely as not that tinnitus first manifest during the Veteran’s active service. The VA examiner opined that neither the Veteran’s hearing loss nor his tinnitus were at least as likely as not due to his active duty service. This is inconsistent with the VA examiner’s other findings, including that the Veteran experienced “incidents of temporary [hearing] threshold shifts” during his active duty service and that his tinnitus is at least as likely as not a symptom of his hearing loss. See id. at 5 and 7. The logical inference thus produced is that if a) the Veteran’s tinnitus is at least as likely as not a symptom of his hearing loss, and b) the Veteran’s tinnitus began during active service “upon [his] return from Viet Nam,” therefore c) it is at least as likely as not that the Veteran also had hearing loss which would produce such tinnitus at that time. The Board therefore assigns the VA examiner’s conclusion as to the etiology of the Veteran’s conditions no probative weight and finds that the third Shedden factor has been satisfied. The   assignment of service connection for tinnitus and hearing loss is therefore warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.303. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Blore, 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.