Citation Nr: 21069489 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 18-19 041 DATE: November 18, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, the Veteran's bilateral hearing loss and tinnitus are related to service, including acoustic trauma incurred during service in Vietnam. CONCLUSIONS OF LAW The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1963 to November 1965. He passed in May 2020 during the pendency of the appeal. The Appellant is the surviving spouse of the Veteran who has been substituted following his death. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision of the Agency of Original Jurisdiction (AOJ). This matter was previously before the Board in March 2019 where it was remanded for additional evidentiary development. 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 service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including organic diseases of the nervous system such as sensorineural hearing loss, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. As explained below, the Board concludes that service connection is warranted. The Veteran contends he developed bilateral hearing loss and tinnitus as a result of loud noise exposure from military artillery without any ear protection, including combat in Vietnam. See Notice of Disagreement dated July 2015. Additionally, in his application filed in October 2013, the Veteran indicated that bilateral hearing loss and tinnitus began in 1965. The Veteran's DD-214 shows his military occupational specialty (MOS) of wireman; he received the Vietnam Service Medal and was awarded the rifle sharpshooter badge. The record also notes visitation to the Republic of Vietnam, indicating he engaged in combat. The Board recognizes that the provisions of 38 U.S.C. § 1154 (b) are for application. 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). Moreover, acoustic trauma due to combat has been accepted as satisfying the in-service disease or injury element of claims for service-connected hearing loss and tinnitus. See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). In Reeves, the Federal Court (Federal Circuit) held that the combat presumption contained within 38 U.S.C. § 1154 (b) [and the implementing VA regulation, 38 C.F.R. § 3.304 (d)] not only applied to a combat injury, but also to the consequences of that injury, at least in service. See Reeves, 682 F.3d at 999 (Fed. Cir. 2012) (holding that the Board was required to apply the section 1154 (b) presumption to the Veteran's claimed acoustic trauma during service and the separate question of whether he suffered permanent hearing loss while on active duty). Notwithstanding, the Board acknowledges the conflicting VA medical opinions of record provided by the same examiner. See VA examinations and opinions of August 2014 and December 2019. The VA examiner concluded that the Veteran's bilateral hearing loss and tinnitus are less likely than not related to his military service. The examiner's reasoning was there was "no significant threshold shifts found" in the Veteran's service audiograms on entry and separation, and that at the time of examination the veteran reported onset as 2011. Id. However, the absence of documented hearing loss in service is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). VA regulation does not preclude service connection for a current hearing loss disability where hearing was within normal limits on audiometric testing during service or even during the one-year presumptive period following service for sensorineural hearing loss. Hensley v. Brown, 5 Vet. App. 155; 159 (1993). Further, the Veteran is competent to provide evidence regarding tinnitus, as it is a condition readily apparent through the senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). When evaluating evidence, the Board must give due consideration to all pertinent medical and lay evidence, and in the service-connection context must consider the circumstances, conditions, and hardships of the Veteran's service. 38 U.S.C. § 1154 (a). Moreover, for a combat injury, § 1154 (b) and § 3.304(d) provide that service connection for the in-service injury can only be rebutted by clear and convincing evidence to the contrary, which in this case is not established. There is no evidence in the record that shows the Veteran lacks credibility. Given the application of 38 U.S.C. § 1154(b) and Reeves and the Veteran's credible statements of artillery noise exposure during service, the Board concludes the Veteran sustained acoustic trauma during combat operations. For the following reasons, the evidence is at least evenly balanced as to whether the Veteran's current bilateral hearing loss and tinnitus are related to his in-service noise exposure. As the reasonable doubt created by the relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for bilateral hearing loss and tinnitus are warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A., 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.