Citation Nr: 21003122 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 19-17 181 DATE: January 19, 2021 ORDER Entitlement to service connection for bilateral hearing loss disability is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The evidence is in a state of relative equipoise regarding whether bilateral hearing loss disability is related to active service. 2. The evidence is in a state of relative equipoise regarding whether tinnitus is related to active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss disability are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1962 to September 1964. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the Veteran testified in a hearing before the Board. A transcript of the hearing has been included in the electronic claims file and has been reviewed. Service Connection The Veteran claims that hearing loss disability and tinnitus were incurred as the result of the acoustic trauma from weapons fire, land explosions, and helicopters he was exposed to while serving as an infantry unit commander in the U.S. Army. Law and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. To establish a right to compensation for a 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 active service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For veterans who served 90 days or more of active duty during a war period or after December 31, 1946, certain chronic disorders such as sensorineural hearing loss 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, 1112, 1113; 38 C.F.R. §§ 3.307 (a), 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those disabilities specified as chronic under 38 C.F.R. § 3.309 (a)). Under VA guidelines, hearing loss will be considered a disability for compensation purposes 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 3 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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Evidence and analysis The evidence in this matter consists of the Veteran’s lay assertions, service treatment records (STRs), VA treatment records, private audiology opinions dated in September 2014 and October 2015, and a VA compensation examination report and opinion dated in April 2015. For the reasons set forth below, a service connection finding is warranted here. First, the evidence shows that the Veteran has a bilateral hearing loss disability and tinnitus. These are noted in the April 2015 VA examination report which indicates auditory thresholds at or higher than 40 decibels in each ear between 2000 and 4000 Hz. Second, the Veteran had a high probability of noise exposure as the result of his duties as an infantry unit commander in the U.S. Army. In lay statement of record, he described the loud noises he was regularly exposed to as the result of his training with weapons, explosives, and near helicopters. Third, the evidence is divided with regard to whether the hearing loss and tinnitus relates to the in-service noise exposure. Certain evidence indicates that the Veteran did not incur these disabilities during service. None of the STRs dated during the period of active duty indicates a hearing loss disability during active duty. The earliest evidence of record of a hearing problem is dated many years after active duty. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). And, in the April 2015 VA opinion addressing this claim, the examiner concluded that the Veteran’s hearing problems were not related to service. The opinion is probative because it is supported by the evidence in the STRs, and because it is explained. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician’s statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion). Certain other evidence supports the claim, however. In written statements and in testimony before the Board, the Veteran described experiencing loud noises during service and perhaps remembering impairment during service. In testimony before the Board, the Veteran’s wife of over 64 years described her observations of the Veteran’s increasingly diminishing hearing acuity over the years since service, and her belief that hearing problems are related to noise exposure during service. Their statements are probative because as laypersons they are competent to describe observable symptomatology such as diminished hearing acuity and ringing in the ears. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Moreover, the record indicates that the Veteran’s wife is a medical professional, a registered nurse. So, she is also competent to render an opinion regarding whether the noise exposure in service may have affected hearing following service. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Further, their testimony was found to be credible by the undersigned. See Smith v. Derwinski, 1 Vet. App. 235 (1991) (credibility is determined by the fact finder). Lastly, the September 2014 and October 2015 private audiology opinions firmly support the Veteran’s claims. In each opinion, the audiologist describes the ways in which he believes weapons fire affected the Veteran’s ears. Indeed, the examiner indicated that hearing loss in the left ear was worse because of the proximity of the ear to the barrel of a firearm. As with the VA opinion, the private opinions are persuasive because they are based on the evidence and are explained. See Bloom, supra. Based on the foregoing evidentiary background, the Board cannot find that the preponderance of the evidence is against the Veteran’s claims. As such, this is an appropriate case in which to invoke VA’s doctrine of reasonable doubt, grant the Veteran the benefit of the doubt, and grant the claims. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher McEntee, 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.