Citation Nr: 21065787 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 19-09 147 DATE: October 27, 2021 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. FINDINGS OF FACT 1. The Board resolves doubt in the Veteran's favor by finding that the competent and probative evidence of record is in equipoise as to whether the Veteran's hearing loss is related to service. 2. The most probative evidence supports a finding that the Veteran's tinnitus had its onset during active duty service, and continued since. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1968 to September 1972, with prior Reserve service from November 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript is of record. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for 90 days or more and hearing loss or tinnitus becomes manifest 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 in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 1. Service connection for bilateral hearing loss The Veteran seeks service connection for bilateral hearing loss, which he contends is due to hazardous noise exposure during his three years as a Marine Corps pilot. For the purposes of applying the law administered by VA, 38 C.F.R. § 3.385 provides that 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 is 40 decibels or more; when the auditory thresholds for at least three of the frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. "[W]hen audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." Hensley v. Brown, 5 Vet. App. 155, 160 (1993). Medical evidence of recordspecifically a September 2017 VA examinationindicates that the Veteran has a bilateral hearing loss disability in accordance with 38 C.F.R. § 3.385. Thus, the question becomes whether the current disability is related to service. On this question there are probative opinions in favor of and against the claim. The evidence against the claim includes the medical opinion of the September 2017 VA examiner, who concluded that the Veteran's bilateral hearing loss was less likely than not caused by service. The examiner noted that the Veteran's hearing thresholds at the time of entrance and separation from service were within normal limits and cited the American College of Occupational Medicine Noise and Hearing Conservation Committee's finding that "a noise induced hearing loss will not progress once it is stopped." The evidence in favor of the claim includes an August 2021 private medical opinion from the Veteran's treating physician, Dr. P. S., who concluded that the Veteran's hearing loss was likely due to service. Dr. S.'s rationale was that the Veteran had a great deal of noise exposure in the military, no noise exposure after military service, and no significant family history of hearing loss. In addition, while there is no indication that a hearing loss disability in accordance with 38 C.F.R. § 3.385 existed during or within one year of service, the Board notes that two in-service audiograms from May 1970 and February 1972note high frequency hearing loss in the left ear. Upon review of the record, the Board finds the evidence to be at least be in equipoise as to whether the Veteran's current hearing loss is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for bilateral hearing loss is warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Service connection for tinnitus When a condition may be diagnosed by its unique and readily identifiable features, as is the case with tinnitus, the presence of the disorder is not a determination "medical in nature," and is capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303 (2007). When a claim involves a diagnosis based on purely subjective complaints, the Board is within its province to weigh the Veteran's testimony and determine whether it supports a finding of service incurrence and continued symptoms since service. Id. If it does, such testimony is enough to establish service connection. Id. The record includes competent evidence both for and against the Veteran's claim for service connection for tinnitus. A September 2017 VA examination noted that the Veteran suffers from tinnitus, but the examiner concluded that the Veteran's tinnitus was less likely than not caused by or a result of military noise exposure. The examiner's rationale was that the record does not contain any evidence of complaints of tinnitus or hearing loss during service, or evidence of audiology treatment in the many intervening years. During the September 2017 examination, the Veteran reported that his tinnitus began in the 1990s. He clarified this report at the July 2021 Board hearing, testifying that during service for a short period after flying he could still hear the ringing of the high pitched engine noise after leaving the flight line, and adding that he believes he has been experiencing tinnitus symptoms for many years but that he did not take notice until it had progressed in severity. The Board finds the Veteran's testimony that his tinnitus manifested during service and continued since to be competent and credible. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current tinnitus was incurred in service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for tinnitus is warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Jesteadt, 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.