Citation Nr: 21002983 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 16-45 526 DATE: January 19, 2021 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for bilateral hearing loss is granted. FINDINGS OF FACT 1. Tinnitus manifested in service or within one year of service and has continued since that time. 2. The Veteran experienced dulled hearing in service and his symptoms of hearing loss continued since that time. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 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 Air Force from June 1963 to May 1967. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a December 2020 virtual hearing before the Board; a transcript of the hearing is associated with the claims file. Although the RO classified the above issues as claims to reopen in the September 2015 rating decision, the Board finds that new and material evidence was received within the one-year period following the prior July 2014 rating decision. The July 2014 rating decision denied both claims, at least in part, based on the lack of a current disability. A May 2015 VA examination diagnosed both bilateral hearing loss and tinnitus. Such evidence is new because it was not considered in the July 2014 rating decision. It is material because it establishes the existence of bilateral hearing loss and tinnitus. Accordingly, the Board finds that the July 2014 rating decision was not final and the claim is considered without regard to the prior denial. See 38 C.F.R. § 3.156(b); Lang v. Wilkie, 971 F.3d 1348 (Fed. Cir. 2020). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Both sensorineural hearing loss and tinnitus, as organic diseases of the nervous system, are listed chronic conditions, with a presumptive period of one year following separation from service. 1. Entitlement to service connection for tinnitus The Veteran contends that service connection for tinnitus is warranted based on in-service exposure to acoustic trauma. The Veteran has a current diagnosis of tinnitus as evidenced by his December 2020 testimony. Tinnitus is an organic disease of the nervous system, one of the enumerated conditions under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. A May 2008 VA medical center record noted that the Veteran’s tinnitus “started in service with exposure to jet engine noise.” In a May 2012 claim, the Veteran reported that his tinnitus began in 1967, the year of his separation from service. At the December 2020 Board hearing, the Veteran testified that that he first noticed tinnitus “either right at the end of service, or right after, and that’s continued all the way to today.” In contrast, at the May 2015 VA examination the Veteran stated that he “[could not] recall onset of tinnitus.” An October 2015 VA medical opinion determined that “there was no hearing loss and no shift in hearing to support noise induced . . . tinnitus” but did not address the Veteran’s reports of tinnitus at separation from service. The Board finds the Veteran’s statements regarding onset in service or at separation are credible, and he is competent to report a condition he experiences and its duration. Resolving reasonable doubt in the Veteran’s favor, that he experienced tinnitus in service, or within one year of separation from service, and it continued from that time to the present. See 38 C.F.R. § 3.102. Accordingly, service connection is warranted for tinnitus. See 38 C.F.R. §§ 3.303, 3.309. 2. Entitlement to service connection for bilateral hearing loss The Veteran contends that service connection for bilateral hearing loss is warranted based on in-service exposure to acoustic trauma The Veteran has a current diagnosis of bilateral sensorineural hearing loss as evidenced by the May 2015 VA examination. Sensorineural hearing loss is an organic disease of the nervous system, one of the enumerated conditions under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. In service, the Veteran worked as a vehicle operator on the flight line; his duties would have included exposure to excessive noise, constituting an injury in service. The Veteran denied current or past hearing loss in a December 1966 Report of Medical History, five months prior to separation. At the December 2020 Board hearing, the Veteran testified that his hearing was dulled after coming off duty on the flight line. He further testified that “when [he] was off duty for any extensive period of time, [his hearing] would seem to come back a little bit.” The Veteran also stated at the Board hearing that he first noticed his hearing loss “25, 30 years ago” but that he thought his hearing had been worse even prior to that. While no treatment records exist from the applicable presumptive period until May 2008, the Board finds that the Veteran continued to experience the same symptom of dulled hearing from service to the present. This is supported by the Veteran’s statements, discussed in the previous section, that his tinnitus started in service or close to separation from service. The Veteran is competent to report that he experienced dulled hearing in service and thereafter. The Board finds his testimony and statements credible and entitled to probative weight because of their general internal consistency. Although an October 2016 VA medical opinion found that “there was no hearing loss and no shift in hearing to support noise induced hearing loss . . .” during service, that medical opinion did not consider the Veteran’s statements and testimony that his tinnitus began in service or at separation, which demonstrates auditory trauma. Accordingly, resolving reasonable doubt in the Veteran’s favor, the Board finds that that he experienced dulled hearing in service, and this continued from that time to the present. See 38 C.F.R. § 3.102. Service connection for bilateral hearing loss is therefore warranted. See 38 C.F.R. §§ 3.307, 3.309. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. Ripplinger, 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.