Citation Nr: 21061848 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 18-46 416 DATE: October 5, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The evidence is in equipoise as to whether the Veteran's bilateral hearing loss was incurred in or aggravated by active service. 2. The evidence is in equipoise as to whether the Veteran's tinnitus was incurred in or aggravated by active service. CONCLUSIONS OF LAW 1. The criteria are met for service connection for bilateral hearing loss. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. The criteria are met for service connection for tinnitus. 38 U.S.C. §§ 1110, 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 July 1960 to June 1964. In September 2021, the Veteran presented testimony at Board of Veterans' Appeals hearing. The content of that hearing has been considered and incorporated in the decision below. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain disorders, listed as "chronic" in 38 C.F.R. § 3.309 (a) and 38 C.F.R. § 3.303 (b), are capable of service connection based on a continuity of symptomatology without respect to an established causal nexus to service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Sensorineural hearing loss and tinnitus, as organic diseases of the nervous system, constitute "chronic" diseases listed under 38 C.F.R. § 3.309 (a). Therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303 (b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 38 C.F.R. § 3.303 (b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as hearing loss or tinnitus, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 (a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. 1. Bilateral Hearing Loss The Veteran is seeking entitlement to service connection for bilateral hearing loss that he believes is due to acoustic trauma sustained during his military service. Here, the VA audiological examination confirms diagnoses of bilateral hearing loss (for VA purposes). See July 2017 VA Audiological Examination. The Veteran's STRs are silent for reports of bilateral hearing loss. However, his DD Form 214 shows that he served as an airplane mechanic in the Air Force. Therefore, in-service noise exposure is conceded. During the July 2017 VA examination, the VA examiner concluded the Veteran's bilateral hearing loss was not related to service due to the lack of hearing loss present at service separation. The Board finds this opinion is inadequate for adjudicative purposes. The Board notes that the absence of documentation of, treatment for, or complaints of hearing loss during service cannot serve as the basis of a negative etiology opinion. Henley v. Brown, 5 Vet. App. 155, 157 (1993). During the September 2021 Board hearing, the Veteran reported first noticing hearing loss during active service, which has continued since. Weighing the negative VA opinion against the Veteran's competent and credible lay testimony, the evidence is at least in balance with respect to whether he has bilateral hearing loss that is due to his service. The Veteran has competently asserted that he has had continuous hearing loss from service to the present. The Board will grant the claim based on the benefit of the doubt doctrine. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). 2. Tinnitus The Veteran is seeking entitlement to service connection for tinnitus that he believes is due to acoustic trauma sustained during his military service. Tinnitus is defined as a ringing in the ears, and it is a disorder that is uniquely identifiable by the senses of the person experiencing it. It is a condition that is "simple" in nature in that respect, and thus, is a disability that can be diagnosed by the person experiencing the condition. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The existence of tinnitus does not require any medical expertise to identify (i.e. tinnitus is not "complex" in nature), and assuming the Veteran's allegations are credible, testimonial evidence of an origin of the condition in service can be used to support a claim for service connection. The Veteran's STRs are silent for reports of tinnitus. However, his DD Form 214 shows that he served as an airplane mechanic in the Air Force. Therefore, in-service noise exposure is conceded. During the July 2017 VA examination, the Veteran denied experiencing tinnitus. Thus, the VA examiner concluded the Veteran's tinnitus was not related to service. (Continued on the next page) During the September 2021 Board hearing, the Veteran reported first noticing ringing in his ears during active service, which has continued since. Weighing the negative VA opinion against the Veteran's competent and credible lay testimony, the evidence is at least in balance with respect to whether he has tinnitus that is due to his service. Unlike hearing loss, tinnitus is capable of lay diagnosis, and the Veteran has competently asserted that he has had continuous ringing in his ears from service to the present. The Board will grant the claim based on the benefit of the doubt doctrine. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). K. Anderson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Berry, 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.