Citation Nr: 21068791 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 17-04 074 DATE: November 12, 2021 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his bilateral hearing loss disability is likely related to active military service. 2. The Veteran has credibly asserted that he began experiencing tinnitus during service and that it has continued to the present. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; 3.385. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from August 1968 to August 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in October 2015 by the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina. The Veteran testified before the undersigned at a Board hearing held in July 2021. A transcript of that hearing has been associated with the record. Service Connection The Veteran contends that his current bilateral hearing loss was caused by in-service noise exposure; specifically, an April 1969 incident in which he was in the vicinity of an ammunition storage facility which exploded. His service personnel records contain a detailed citation, showing that a "catastrophic explosion" occurred in his presence, resulting in the explosion of 38,000 tons of munitions over the course of 24 hours. During this time, the Veteran aided in the evacuation of both military and civilian personnel. Service connection may be granted 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 (a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Bilateral Hearing Loss 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. 38 C.F.R. § 3.385. Here, review of audiometric testing conducted at an October 2015 VA examination reveals that the Veteran has a bilateral hearing loss disability as defined by 38 C.F.R. § 3.385. The October 2015 VA examiner concluded that the Veteran's reported noise exposure was of the kind that was correlated with sensorineural hearing loss. However, she concluded that because the Veteran reported post-service recreational hunting, and there was no shift in hearing thresholds during service, she could not link the Veteran's hearing loss to service without resorting to speculation. At the July 2021 hearing before the Board, the Veteran testified that first he experienced bilateral hearing loss in service, following the explosion, and had continued to experience such since that time. He also testified that, despite the VA examiner's apparent conclusion that there was a post-service noise exposure causing his disability, he had only hunted on two occasions in the 50 years since his 1970 discharge. With regard to a relationship between hearing loss and noise exposure in service, the Board notes that the Veteran is competent to report that he was exposed to noise in service and that he has had hearing loss since then. To the extent that the October 2015 VA audiological examiner opined that the Veteran's bilateral hearing loss was not related to his military service, because of a lack of significant threshold shift, the Board finds such opinion is of limited probative value. In that regard, the Board notes that the lack of any evidence showing the Veteran exhibited hearing loss consistent with the regulatory threshold requirements for hearing disability during service is not fatal to his claim. The laws and regulations do not require in-service complaints of, or treatment for, hearing loss in order to establish service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Instead, where there is no evidence of hearing disability until many years after separation from service, "[i]f evidence should sufficiently demonstrate a medical relationship between the appellant's in-service exposure to loud noise and his current disability, it would follow that the appellant incurred an injury in service." Hensley v. Brown, 5 Vet. App. 155, 160 (1993). Rather, the Board has considered the Veteran's confirmed and substantial in-service acoustic trauma, his lay statements concerning symptomatology, to include his July 2021 testimony, and the October 2015 VA examination which indicated that the Veteran's hearing loss is of the nature that is usually seen in relation to acoustic trauma. It balances this evidence against the October 2015 etiological opinion that a conclusion could not be rendered without resorting to speculation. In light of such, the Board finds the evidence to be in relative equipoise. Accordingly, resolving reasonable doubt in his favor, the Board concludes that service connection for bilateral hearing loss is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The claim is granted. Tinnitus The Veteran asserts that he developed tinnitus as a result of his in-service noise exposure. The October 2015 examiner found that his tinnitus was at least as likely as not a symptom of his bilateral hearing loss. Because the Board is granting service connection for hearing loss, supra, and for the reasons below, it finds that service connection for tinnitus is warranted as well. The Veteran testified at the July 2021 hearing that he developed tinnitus immediately after the in-service explosion, and that it has continued ever since. He is competent to testify to such. Tinnitus is a unique condition for which lay observation is competent to establish the presence of the disability. Charles v. Principi, 16 Vet. App. 370 (2002) (on the question of whether the veteran has a chronic condition since service, the evidence must be medical unless it relates to a condition as to which, under case law, lay observation is competent). Further, the Board finds no reason to question the credibility of the Veteran's assertions of tinnitus dating back to his time of active service. As noted above, the Veteran has confirmed in-service noise exposure. He has consistently stated that he experienced tinnitus during service and experiences it today, and there is no persuasive evidence of record indicating that his statements are not credible. Under these circumstances, and in consideration of the October 2015 VA opinion which associated tinnitus to hearing loss, all reasonable doubt is resolved in favor of the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, supra. The claim is granted. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jeremy J. Olsen, 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.