Citation Nr: 20009990 Decision Date: 02/06/20 Archive Date: 02/06/20 DOCKET NO. 18-14 550 DATE: February 6, 2020 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. FINDINGS OF FACT The evidence of record demonstrates that the Veteran’s bilateral hearing loss and tinnitus was incurred during military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1112, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.385. 2. The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1112, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from March 1968 to February 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran contends that had noise exposure without hearing protection during service during his combat tour in Vietnam because of his duties as a field artillery targeting and intelligence analyst. See January 2020 Written Brief Presentation. He contends that he has had hearing loss ever since Vietnam. See December 2016 VA examination report. He also reports that his tinnitus was onset in Vietnam. See Id.; January 2020 Written Brief Presentation. He states that he did not say anything about his ears at separation because he wanted to go home. See December 2016 VA examination report. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as organic diseases of the nervous system, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA’s Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. The Court has held that tinnitus is a disease, rather than merely a symptom, and that 38 C.F.R. § 3.309(a) “includes tinnitus, at a minimum where there is evidence of acoustic trauma, as an ‘organic disease[] of the nervous system.’” Moreover, the Court indicated that, as such a presumptive condition, tinnitus warranted consideration of the continuity of symptomatology provisions found at 38 C.F.R. § 3.303(b). Fountain v. McDonald, 27 Vet. App. 258 (2015). For the 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 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 December 2016 VA examination report shows a current diagnosis of bilateral hearing loss for VA purposes under 38 C.F.R. § 3.385. At the examination, the Veteran also reported tinnitus. See Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus is a disorder that is readily observable by laypersons and does not require medical expertise to establish its existence). Likewise, as noted above, the Veteran had service in the Republic of Vietnam in a field artillery unit; the Board therefore concedes that the first two elements of service connection are met in this case. However, the VA examiner determined the conditions were not related to service, as the Veteran as the service treatment records do not show tinnitus or a hearing loss disability for VA purposes during service. See December 2016 VA examination report. Although the Board acknowledges that the service treatment records do not show a diagnosis of hearing loss in service, entitlement to service connection for hearing loss does not require that the criteria under 38 C.F.R. § 3.385 be met during service, as it may be met after service. Hensley v. Brown, 5 Vet. App. 155 (1993). Further, the VA examiner failed to address the Veteran’s competent and credible lay statements that his hearing loss and tinnitus began during military service, or address whether the noise the Veteran was exposed to during his combat service was the cause of his hearing loss or tinnitus. The Board therefore finds no probative value respecting that medical opinion, in light of these deficiencies. The remaining evidence of record consists of the Veteran’s statements that during his combat service he had hearing loss and tinnitus, which he did not report at separation because he wanted to get home. The Veteran’s other highly competent, credible and probative statements indicate that he has had hearing loss and tinnitus since his military service. Based on this highly competent, credible and probative evidence, the Board finds that the preponderance of the evidence in this case demonstrates that the Veteran’s bilateral hearing loss and tinnitus were incurred during the Veteran’s combat service in a field artillery unit in the Republic of Vietnam. Accordingly, service connection for bilateral hearing loss and tinnitus is warranted based on the evidence of record at this time. See 38 C.F.R. § 3.303. In so reaching that conclusion, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Samuelson, 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.