Citation Nr: 21069773 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 18-34 360 DATE: November 19, 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 evidence is at least in equipoise as whether the Veteran's current bilateral hearing loss is etiologically related to in-service acoustic trauma. 2. The most probative evidence of record indicates the Veteran's current tinnitus is related to in-service acoustic trauma and/or bilateral hearing loss. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.385. 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1967 to June 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a Board hearing in July 2021. The transcript is of record. The claimant has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection 1. Entitlement to service connection for bilateral hearing loss Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 247, 431 (2006). Service connection may be granted for any disease initially 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). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including other organic diseases of the nervous system (which includes sensorineural hearing loss and tinnitus), are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the purposes of applying the laws administered by VA, impaired hearing will be 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 frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. Thresholds for normal hearing are between 0 and 20 decibels, and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Veteran has current bilateral hearing loss, confirmed by testing conducted at an August 2017 VA audiological examination. He contends that his hearing loss was caused by in-service acoustic trauma. The Veteran testified credibly that he was exposed to tank noise, gunfire, and other acoustic trauma without hearing protection in service. The Board finds this testimony in accord with the nature of the Veteran's service as represented by the record, and thus exposure to hazardous noise is conceded. Thus, it remains only to determine whether the Veteran's current hearing loss is etiologically related to the in-service hazardous noise. The evidence in this case is at least in equipoise on the question. Critically, the record is bare of evidence of a more convincing alternative provenance of bilateral hearing loss, such as post-service occupational or recreational noise exposure. Although the August 2018 VA examiner concluded the Veteran's demonstrated current hearing loss was unrelated to service, reasoning that service records failed to show objective changes to the Veteran's hearing in service, the Board finds at least as probative the Veteran's credible and consistent description of his in-service experience and the pattern of hearing loss since separation. As noted, that account is supported by the nature of the Veteran's service, and the Board does not find in the record a more likely post-service cause for the Veteran's current hearing loss. Thus, based on the Veteran's credible lay statements and the conceded in-service noise exposure, the Board finds in favor of the claim for service connection for bilateral ear hearing loss, and the appeal is granted. 2. Entitlement to service connection for tinnitus The Veteran has credibly averred that he has tinnitus as a result of in-service noise exposure. Because the Veteran in this case has offered competent, credible statements that he experiences tinnitus, the Board finds he has met the current disability threshold. See Charles v. Principi, 16 Vet. App. 370, 374 (2002)("ringing in the ears is capable of lay observation"). The dispositive issue is therefore whether tinnitus is related to service. As discussed above, the Veteran's credible account of his service has led the Board to concede exposure to hazardous noise therein. Although the August 2017 VA examiner opined that tinnitus was unrelated to service, noting the lack of in-service complaint and the Veteran's imprecision with regard to onset, the Board finds more credible the Veteran's testimony with respect to in-service noise exposure and post-service development of tinnitus. Moreover, the Board cannot satisfactorily disassociate tinnitus from the conceded noise exposure in the absence of a more convincing alternative provenance of the symptom. Accordingly, the Board finds that sufficient evidence exists to establish a basis for service connection for tinnitus, and thus the claim for service connection is granted. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Sahraie, 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.