Citation Nr: 20031007 Decision Date: 05/04/20 Archive Date: 05/04/20 DOCKET NO. 17-07 286 DATE: May 4, 2020 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for bilateral hearing loss is granted. FINDINGS OF FACT 1. There is an approximate balance of positive and negative evidence as to whether the Veteran’s tinnitus is related to acoustic trauma during service. 2. There is an approximate balance of positive and negative evidence as to whether the Veteran’s bilateral hearing loss is related to acoustic trauma during service. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1964 to October 1966. These matters are before the Board of Veterans’ Appeals (Board) from a July 2015 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Veteran testified at a Board hearing held before the undersigned. A transcript of the hearing is of record. Service Connection 1. Entitlement to service connection for bilateral hearing loss and tinnitus The Veteran is seeking service connection for hearing loss and tinnitus. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (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 - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Continuity of symptomatology may also provide a basis for a grant of service connection for those diseases defined as “chronic” by VA. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, any reasonable doubt is resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran asserts that his hearing loss and tinnitus are the result of exposure to excessive noise from artillery and mortars during service in Vietnam. 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, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz 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 threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Id.; Hensley v. Brown, 5 Vet. App. 155, 157 (1993); McKinney v. McDonald, 28 Vet. App. 15, 24-5 (2016). The absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for a hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley, 5 Vet. App. at 159. Tinnitus is defined as a noise in the ear, such as ringing, buzzing, roaring, or clicking, that is usually subjective in type. Dorland’s Illustrated Medical Dictionary 1956 (31st ed. 2007). And, indeed, because of the inherently subjective nature of tinnitus, it is readily capable of even lay diagnosis. Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran’s DD-214 shows that his military occupational specialty (MOS) was a field artillery basic. This MOS is typically associated with routine exposure to hazardous noise levels. The Board has also considered his assertions that he was not provided ear protection and how he was constantly exposed to hazardous noise levels due to artillery and mortars. Thus, it is plausible that he was exposed to acoustic trauma in service. 38 U.S.C. § 1154(a). The June 2015 VA examination confirms the Veteran currently has bilateral hearing loss for VA purposes. After carefully reviewing and weighing the competent medical evidence of record, the Board is satisfied that it is in at least approximate balance as to whether the Veteran’s current hearing loss and tinnitus are related to service. The unfavorable evidence consists of service treatment records, which are entirely negative for hearing complaints, as well as the more than 40-year post-service period during which the Veteran did not seek or require any form of treatment or evaluation for pertinent complaints. In addition, a VA audiologist noted the Veteran’s in-service noise exposure, but concluded that hearing loss and tinnitus did not result from it. He explained that audiograms at enlistment and separation indicate hearing within normal limits, thus the Veteran’s hearing loss was not incurred in military service. The examiner also explained that the Veteran reported longstanding bilateral tinnitus and that his tinnitus is at least as likely as not a symptom associated with the hearing loss since tinnitus is known to be a symptom associated with hearing loss. However, the record also contains favorable evidence, primarily the Veteran’s likely exposure to some degree of acoustic trauma during service (as is confirmed by his MOS). Moreover, the Veteran submitted statements by his two daughters that reported that ever since they were children, the Veteran had hearing problems and tinnitus. His wife also testified that ever since she knew him, he has always had hearing problems. Most importantly, the Veteran testified that he experienced tinnitus while in service and that he experienced hearing loss shortly after leaving service. This supporting evidence places the pertinent record in relative equipoise. In this case, any doubt that remains as to whether at least some of his hearing problems are attributable to service, as opposed to some other cause, is resolved in favor of the Veteran and service connection for hearing loss and tinnitus is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Imam, 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.