Citation Nr: 21075277 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 18-22 973 DATE: December 20, 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 Veteran's bilateral hearing loss was incurred in service and continuity of symptomatology is established. 2. The Veteran's tinnitus was incurred in service and continuity of symptomatology is established. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303(b), 3.304(d), 3.309(a), 3.385. 2. The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303(b), 3.304(d), 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1969 to September 1970, including service in the Republic of Vietnam. His decorations include the Combat Infantryman Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision issued by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In November 2021, the Veteran testified at a virtual hearing before the undersigned. The Veteran asserts that he is entitled to service connection because his hearing loss and tinnitus were incurred in combat. The Board agrees. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. To establish entitlement to direct service connection, a veteran must show (1) a present disability; (2) an 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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). For veterans who have served continuously for 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including sensorineural hearing loss and tinnitus, are presumed to have been incurred in service if manifest to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this regard, tinnitus due to acoustic trauma is an organic disease of the nervous system for purposes of entitlement to presumptive service connection and service connection based on continuity of symptomatology. See Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). If symptoms of a chronic disease are noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required to presumptively establish service connection. 38 C.F.R. § 3.303. However, the presumption of service connection may be rebutted where there is evidence of an intercurrent injury or disease. 38 U.S.C. §§ 1110, 1113; 38 C.F.R. § 3.307(d). For VA compensation purposes, a hearing loss disability exists where auditory thresholds equal or exceed 40 decibels at any of the frequencies of 500, 1000, 2000, 3000, or 4000 hertz; or equal or exceed 26 decibels at any three of those frequencies; or where speech recognition by Maryland CNC testing is less than 94 percent. See 38 C.F.R. § 3.385. Here, the Veteran has a current hearing loss disability for VA purposes and a current diagnosis of tinnitus. See February 2016 VA Audiology Examination Report. Thus, the first element of entitlement to service connection for bilateral hearing loss and tinnitus are met. With respect to the second element of service connection, an in-service injury, the Veteran competently and credibly testified as to incurrence of hearing loss and tinnitus in combat, thereby clarifying his prior statement to the February 2016 VA examiner of an initial onset of tinnitus in the 1980s. As the Veteran participated in combat, his lay testimony is sufficient to in-service incurrence of a permanent hearing loss in combat. See Reeves v. Shinseki, 682 F.3d 988, 998-1000 (Fed. Cir. 2012); 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). Moreover, his testimony is not contradicted by the evidence of record. In this regard, while the Veteran's entrance and separation examination reports both show normal hearing, see February 2016 VA Audiology Examination Report at 4, and although the examiner noted that "no permanent, clinically significant threshold shifts occurred," see id., the record shows that some of the Veteran's relevant auditory thresholds in each ear increased between service entrance and separation, and none decreased. Compare October 1968 Pre-Induction Audiogram and September 1970 Separation Audiogram. Thus, the Board accepts the Veteran's lay testimony as to combat incurrence of hearing loss and tinnitus, and the second element of service connection is met. With respect to the third element of service connection, whether there is an etiological relationship between the disability and the disability incurred in service, the Veteran competently and credibly testified as to continuity of symptomatology since service. In this regard, while the February 2016 VA examiner opined that the Veteran's hearing loss and tinnitus were less likely than not due to his military service, the examiner did not accept that the Veteran incurred permanent hearing loss and tinnitus in combat. Thus, as the examiner's opinion is not based on an accurate factual basis, it is not probative and does not weigh against the claim. Thus, the third and final element of entitlement to service connection for bilateral hearing loss and tinnitus is met, and accordingly the appeal is granted. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.M. Badaczewski, 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.