Citation Nr: 21066856 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 18-14 314A DATE: November 2, 2021 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. FINDINGS OF FACT 1. Resolving any reasonable doubt in the Veteran's favor, his bilateral hearing loss onset during his service and has continued since then. 2. Resolving any reasonable doubt in the Veteran's favor, his tinnitus onset during his service and has continued since then. 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, 3.307, 3.309. 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, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1966 to September 1969, with service in the Republic of Vietnam. This matter comes before the Board of Veterans Appeals (Board) on appeal from a July 2015 rating decision. In August 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran's claims file. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Additionally, service connection can also be established through application of a statutory presumption for chronic diseases, including organic diseases of the nervous system, such as bilateral hearing loss and tinnitus, when manifested to a compensable degree within a year of separation from service. 38 C.F.R. §§ 3.307, 3.309. If a chronic disease is not manifested to a compensable degree within a year of separation of service, then, generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Furthermore, a layperson is competent to report on the onset and continuity of his or her current symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Bilateral Hearing Loss The Veteran seeks service connection for bilateral hearing loss, for which he has a current undisputed diagnosis sufficient for VA compensation purposes. See 38 C.F.R. § 3.385 (stipulating that, for the purpose of applying the laws administered by VA, impaired hearing is considered a "disability" when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the above frequencies are 26 decibels or higher; or when speech recognition scores using the Maryland CNC Test are less than 94 percent). See also July 2015 VA audiological examination. At the July 2015 VA examination, the examiner confirmed the Veteran's diagnosis of bilateral hearing loss but found that it was less likely than not related to his service. The examiner explained that, according to a report released by the Institute of Medicine, there is insufficient evidence that permanent noise-induced hearing loss can develop much later in one's lifetime. The examiner further explained that, while the Veteran reported being exposed to traumatic noise in service, there is no record that he reported experiencing hearing loss during service, his hearing at separation was normal, and his post-service occupation included noise exposure. Therefore, the examiner concluded that it was less likely than not that there is a nexus between the Veteran's current bilateral hearing loss and his service. At the August 2021 hearing, the Veteran testified that, while he was stationed in Camp Evans in Vietnam, he was exposed to extremely loud gunfire from large tank-mounted guns. He also testified that he first noticed difficulty with his hearing while he was stationed in Oklahoma. While the Board cannot ignore or disregard the VA examiner's medical conclusions, the Board is free to assess medical evidence and is not compelled to accept a medical opinion. See Willis v. Derwinski, 1 Vet. App. 66 (1991); Wilson v. Derwinski, 2 Vet. App. 614 (1992). Here, the examiner failed to address the Veteran's competent statements that his bilateral hearing loss onset during service. As such, the Board affords it less probative value than the Veteran's competent, credible testimony. In light of the above, the evidence is at least in equipoise as to whether the Veteran's current bilateral hearing loss began in or is a result of his service. Resolving any reasonable doubt in the Veteran's favor, the Board finds that it is at least as likely as not that his bilateral hearing loss onset during his service and has continued since then. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thus, service connection for bilateral hearing loss is granted. Tinnitus The Veteran also seeks service connection for tinnitus. Tinnitus is a type of disorder associated with symptoms that are uniquely capable of lay observation. Charles v. Principi, 16 Vet. App. 370 (2002). The primary role of the Board in adjudicating the tinnitus claim is to assess the credibility of the Veteran's statements. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In the July 2015 VA opinion, the examiner found that the Veteran's tinnitus was less likely than not related to his service. The examiner based this conclusion on the fact that the Veteran's hearing was normal at separation from service and that he had post-service noise exposure in his civilian occupation. At the August 2021 hearing, the Veteran testified that, while he was stationed in Camp Evans in Vietnam, he was exposed to extremely loud gunfire from large tank-mounted guns. He also testified that he first began experiencing tinnitus symptoms towards the end of his tour in Vietnam. While the Board cannot ignore or disregard the VA examiner's medical conclusions, the Board is free to assess medical evidence and is not compelled to accept a medical opinion. See Willis, 1 Vet. App. at 66; Wilson, 2 Vet. App. at 614. Here, the examiner failed to address the Veteran's competent statements that his tinnitus onset in service. Also, the examiner's negative nexus opinion was based on the determination that the Veteran's hearing was normal at separation from service. This is factually inaccurate, as a person can have tinnitus without hearing loss and vice versa. As such, the Board affords it little, if any, probative value. The Board finds the Veteran's statements as to the onset of his tinnitus credible. His statements alone are sufficient to establish the criteria for service connection for tinnitus. While there is no objective evidence of tinnitus in service, the Veteran asserts that he developed tinnitus in service and has had tinnitus since then. As noted above, he is competent to give evidence about observable symptoms such as tinnitus and noise exposure. Layno, 6 Vet. App. at 465. Resolving any reasonable doubt in the Veteran's favor, the Board finds that it is at least as likely as not that his tinnitus onset during service and has continued since then. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 49. Therefore, service connection for tinnitus is granted. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Benson, 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.