Citation Nr: 21073553 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 20-01 499 DATE: December 9, 2021 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. FINDING OF FACT The Veteran had noise exposure in service; bilateral hearing loss and tinnitus have been continuous since that time. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1959 to September 1962, including foreign service in Germany. He testified before the undersigned Veterans Law Judge at an October 2021 travel board hearing. A transcript of this proceeding has been associated with the record. Service Connection The Veteran is currently pursuing direct service connection for bilateral hearing loss and tinnitus. The Board will limit its analysis accordingly. As these appeals require similar analyses, they will be addressed simultaneously herein. Service connection may be granted directly as a result of disease or injury incurred in service based on nexus using a three-element test: (1) The existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may also be granted on a presumptive basis for diseases listed in § 3.309 under the following circumstances: (1) Where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Hearing loss and tinnitus are both recognized by VA as "chronic diseases" under 38 C.F.R. § 3.309(a), such that the presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). Here, there is competent evidence of current disabilities. Notably, the Veteran was diagnosed with both recurrent tinnitus, and bilateral hearing loss in accordance with VA regulations, during October 2018 VA examination. See 38 C.F.R. § 3.385 (establishing the criteria for a hearing loss disability). These diagnoses are also documented in VA treatment records spanning the period on appeal. Accordingly, the first element of direct service connection has been met for both appeals. There is also competent evidence of in-service noise exposure. In this respect, the Board acknowledges that the Veteran's DD Form 214 records his military occupational specialty (MOS) as a Clerk Typist, which has a low probability of noise exposure. However, the Veteran has also offered competent and credible testimony that his work was primarily conducted from a command post established in an armored personnel carrier (APC). As a result, he encountered near-constant exposure to engine noise, absent any hearing protection. See, e.g., January 2019 Notice of Disagreement (NOD); January 2020 VA Form 9; October 2021 hearing transcript. The Veteran's testimony in this respect is well-documented and consistent throughout the record. Layno v. Brown, 6 Vet. App. 465, 469 (1994); Miller v. Wilkie, 32 Vet. App. 249 (2020). Notably, there is no evidence which tends to contradict his recollections; rather, the claims file also contains photographs corroborating the Veteran's workplace environment, which appears to offer special protections to prevent noise from escaping the APC, to enable servicemembers to safely communicate classified information. Thus, in affording the Veteran the benefit of the doubt, the second element of direct service connection is also met for both appeals. Finally, at various times during the pendency of these appeals, the Veteran has testified that his bilateral hearing loss and recurrent tinnitus onset during service and have continued since that time. See, e.g., October 2018 VA examination; January 2019 Notice of Disagreement (NOD); October 2021 hearing transcript. Accordingly, the Veteran has had continuous symptoms of bilateral hearing loss and tinnitus since service separation, thus meeting the requirements of presumptive service connection under 38 C.F.R. § 3.303(b). Briefly, the Board acknowledges that the October 2018 VA examiner offered negative nexus opinions for both disabilities. However, the Board does not need to reach the weight assignable to these opinions, because service connection is granted on a presumptive basis under 38 C.F.R. § 3.303(b) for the chronic diseases of bilateral hearing loss and tinnitus (38 C.F.R. § 3.309(a)) based on a finding of continuous symptoms since service. The appeals are hereby granted. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kovarovic, 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.