Citation Nr: 21068368 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 17-31 787 DATE: November 10, 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 Veteran's bilateral hearing loss is etiologically related to his active-duty service. 2. The Veteran's tinnitus is etiologically related to his active-duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1969 to March 1971. The Veteran's service included combat in Vietnam for which he was awarded a Bronze Star and the Combat Infantryman Badge. The Veteran testified at a Board of Veterans' Appeals (Board) hearing in August 2021 before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Service Connection The law provides that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Generally, establishing service connection 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 nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). In cases where a hearing loss disability is claimed, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the above frequencies 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. 38 C.F.R. § 3.385 does not preclude service connection for a current hearing loss disability where hearing was within normal limits on audiometric testing at separation from service. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Rather, when audiometric test results at a veteran's separation from service do not meet the requirements of 38 C.F.R. § 3.385, a veteran may nevertheless establish service connection for current hearing disability by submitting medical evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). Where the requirements for hearing loss disability pursuant to 38 C.F.R. § 3.385 are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post-service test results meeting the criteria of 38 C.F.R. § 3.385; Hensley, 5 Vet. App at 155. If the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflect an upward shift in tested thresholds while in service, though still not meeting the requirements for "disability" under 38 C.F.R. § 3.385, and (b) post service audiometric testing produces findings which meet the requirements of 38 C.F.R. § 3.385; then the rating authorities must consider whether there is a medically sound basis to attribute the post service findings to the injury in service, or whether these findings are more properly attributable to intervening causes. Id. at 159. If the Veteran engaged in combat with the enemy, and it is claimed that a disease or injury was incurred in such combat, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C. § 1154(b); 38 C.F.R. §3.304 (d). To establish service connection, however, there must be medical evidence of a nexus between the current disability and the combat injury. See Dalton v. Nicholson, 21 Vet. App. 23 (2007); Libertine v. Brown, 9 Vet. App. 521, 523-24 (1996). Most recently, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that in such cases, not only is the combat injury presumed, but so are the consequences of that injury at least in service. See Reeves v Shinseki, 682 F.3d 988 (Fed. Cir. 2012). The Federal Circuit explained that "[e]ven when the statutory combat presumption applies, a veteran seeking compensation must still show the existence of a present disability and that there is a causal relationship between the present disability and the injury, disease, or aggravation of a preexisting injury or disease incurred during active duty." Id. at 999 n.9. Thus, the evidence must show that the "disability [the veteran] incurred in service was a chronic condition that persisted in the years following his active duty." Id. at 1000. 1. Entitlement to service connection for bilateral hearing loss 2. Entitlement to service connection for tinnitus The Veteran is seeking service connection for bilateral hearing loss and tinnitus. Specifically, he asserts that his bilateral hearing loss and tinnitus began during combat in Vietnam. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury event, or disease. As a preliminary matter the Board notes that the Veteran has current diagnoses for bilateral hearing loss and tinnitus. Furthermore, the preponderance of the evidence supports the Veteran's claims and leads to the conclusion that they are related to service and service-connection for both disorders is warranted. The Veteran's service treatment records do not indicate the presence of either hearing loss or tinnitus while on active duty. In this regard, the Veteran is a combat veteran, and his statements are presumed factual. 38 U.S.C. § 1154(b). As such, the Board will presume that he was exposed to significant acoustic trauma in service. The Veteran has provided detailed testimony regarding his experiences in combat, which included noise exposure from gunfire, helicopters, and artillery. The Veteran's wife testified that following, the Veteran's active-duty service she observed that his hearing was worse than it had been prior to his tour of duty. Moreover, in 1975, the Veteran's wife performed an audiological test and noted that the Veteran's results were typical of someone with severe high frequency hearing loss. The Veteran's wife holds both a bachelor's and master's degree in speech language pathology and is an audiological specialist. Thus, the Board finds her competent and credible in describing her observations of the Veteran's hearing before and after his service on both a level of a lay person and an expert in the field of audiology. The Veteran was provided was a VA examination in November 2014 to address the etiology of his hearing loss and tinnitus. The examiner noted the that the Veteran was diagnosed with both bilateral hearing loss and tinnitus. The examiner opined that neither disorder was related to service given the large gap in time between the Veteran's active-duty service and the dates on which he was diagnosed. The examiner did not discuss the statements from the Veteran's wife and noted that the 1975 audiological test results were not available for review. The examiner also declined to discuss the Veteran's statements regarding in-service noise exposure. For these reasons, the Board finds that the examiner's opinion carries low probative weight in this decision. The Veteran credibly asserts that his hearing loss and tinnitus are related to service. The Board observes that the Veteran, as a lay person, is competent to report observable symptomatology of an injury, to include tinnitus even absent contemporaneous in-service documentation of such symptoms. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). Additionally, the Veteran's wife has expertise related to audiological determinations and is thus competent and credible in her testimony regarding the symptoms she observed, including the observed shift in the Veteran's hearing from before to after active-duty service. Moreover, the Board notes that noise exposure is consistent with the Veteran's documented combat service and recitations regarding gunfire, helicopters, and explosion exposure. The Board thus finds that the preponderance of evidence, including the Veteran's competent and credible statements of acoustic trauma as well as the testimony from his wife, demonstrates that his bilateral hearing loss and tinnitus are affirmatively related to his active-duty service. And his claim is granted. 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Hernan, Attorney Advisor