Citation Nr: 21072375 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 19-26 764 DATE: December 3, 2021 ORDER New and material evidence to reopen claim of service connection for tinnitus has been presented; to this extent, the appeal is granted. Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. FINDINGS OF FACT 1. New and material evidence was received by VA concerning the Veteran's previously denied claim of entitlement to service connection for tinnitus. 2. Resolving all doubt in the Veteran's favor, the record shows that the Veteran's bilateral hearing loss had its onset and is related to service. 3. Resolving all doubt in the Veteran's favor, the record shows that the Veteran's tinnitus had its onset and is related to service. CONCLUSIONS OF LAW 1. New and material evidence having been submitted, the service connection claim for tinnitus, is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria to establish service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria to establish service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 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 Army from August 1961 to August 1963. In November 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. The Veteran previously submitted a claim of entitlement to service connection for his tinnitus disorder that was previously denied in a February 2010 rating decision. Since that time, in connection with his claim, the Veteran submitted VA treatment records, lay statements and sworn testimony regarding his claimed condition. These documents and statements were new, not duplicative of evidence previously of record, and material in that they addressed the issue at hand. Thus, the Board finds that new and material evidence has been received to reopen his previously denied claim for tinnitus. See 38 C.F.R. § 3.156. Service Connection In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. See Alemany v. Brown, 9 Vet. App. 518 (1996). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. See 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). 1. Bilateral hearing loss The Veteran reports that he is entitled to service connection for his bilateral hearing loss. In support, the Veteran and spouse reported diminished hearing during and since service, which he attributes to hazardous noise exposure during military service. The Veteran and spouse credibly reported that he was exposed to acoustic trauma during service and minimal noise exposure after service. See BVA hearing transcript (November 2021). VA may only find hearing loss to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the frequencies of 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. See 38 C.F.R. § 3.385. The March 2018 medical examination shows that the Veteran was diagnosed with bilateral hearing loss, which meets the criteria for VA hearing loss as a disability. See medical examination (March 2018); and see also 38 C.F.R. § 3.385. Thus, the Veteran has bilateral hearing loss for VA compensation purposes and thus establishes the first element for service connection. The Board acknowledges that on a July 2019 statement of the case the RO stated that the Veteran has a hearing loss condition for VA purposes, but it was less likely related to service. However, the medical and lay evidence, shows that the Veteran was exposed to acoustic trauma in service and a hearing disability has been present ever since. Further, the March 2018 and September 2020 examiners opined that the Veteran's bilateral hearing loss more than likely started in service due to his noise exposure. See medical examinations (March 2018 and September 2020). The Board finds that the medical and lay evidence linking the Veteran's bilateral hearing loss disability to service is probative, competent and credible. The evidence shows that the Veteran's bilateral hearing loss disability is related to service, thus, service connection is warranted. See Flynn v. Brown, 6 Vet. App. 500, 503 (1994) (noting that "the element of cause and effect has been totally by-passed in favor of a simple temporal relationship between the incurrence of the disability and the period of active duty"); see also 38 C.F.R. § 3.303(a) (Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces). In light of the forgoing, the Board finds that the medical and lay evidence shows that the Veteran's bilateral hearing loss condition had its onset in service and have been recurrent since that time. As such, resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's bilateral hearing loss had its onset during his military service. As such, service connection is warranted. See 38 C.F.R. § 3.303(a). 2. Tinnitus The Veteran seeks service connection for his tinnitus condition. In supports, he reports that the condition is due to his in-service acoustic trauma. See BVA hearing transcript (November 2021). The Board finds that service connection for tinnitus is warranted. The Veteran has reported ongoing, recurrent tinnitus during the appeal period, and that his tinnitus began during service. See BVA hearing transcript (November 2021). Additionally, the Veteran reported being exposed to extreme loud noises in service while performing his duties. Id. Further, the March 2018 and September 2020 examiners opined that the Veteran's tinnitus more than likely started in service due to his noise exposure. See medical examinations (March 2018 and September 2020). (Continued on the next page) Even though the service treatment records are silent for reports of tinnitus in service, the Veteran is competent to give reports concerning his noise exposure and the onset of his tinnitus in service, and the Board finds his reports to be credible. See Layno v. Brown, 6 Vet. App. 465 (1994). Thus, all three elements necessary to establish service connection have been met. See Fountain v. McDonald, 27 Vet. App. 258 (2015). The Board acknowledges a negative nexus opinion of record; however, because the Board finds the Veteran's reports that his tinnitus started in service and has been recurrent since service credible, service connection is warranted. See Flynn v. Brown, 6 Vet. App. 500, 503 (1994). STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Alvarado- 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.