Citation Nr: 21077268 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 17-16 526 DATE: December 29, 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. 2. The Veteran's tinnitus was incurred in service. 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, 3.304(d), 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, 3.304(d). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1966 to August 1968, including service in the Republic of Vietnam. His decorations include the Combat Infantryman Badge and the Bronze Star Medal with "V" Device. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision issued by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In December 2021, the Veteran testified at a virtual hearing before the undersigned. The Veteran argues that the VA examination report is inadequate because the examiner erroneously indicated that the Veteran reported the onset of tinnitus in 1993, while the Veteran reported that his symptoms increased in 1993. He submitted a study by Dr. Sharon Kujawa that found delayed-onset noise-induced hearing loss in animals. See January 2014 Correspondence. Additionally, he 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 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 bilateral hearing loss disability for VA purposes and a current diagnosis of tinnitus. See November 2013 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. Moreover, the evidence of record confirms the Veteran's valorous combat service. As the Veteran participated in combat, his lay testimony is sufficient to in-service incurrence of a permanent hearing loss and tinnitus in relation to the same. 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, the Veteran's testimony is not contradicted by the evidence of record. In this regard, while the VA examiner noted that the Veteran reported first noticing his tinnitus in 1993 followed by a worsening in 2007, the Veteran has since clarified that his tinnitus had been present since service and that in 1993 and became severe enough to interfere with normal conversations. See March 2017 VA Form 9. 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 that his tinnitus began in service and has continued to the present. In contrast, the VA examiner misinterpreted the Veteran's statements, and thus the examiner's opinion is based on an inaccurate history of the Veteran's disability and is not probative. Accordingly, the criteria for entitlement to service connection for tinnitus are met. With respect to bilateral hearing loss, the VA examiner's opinion is not probative, as it is not based on an accurate factual basis. Moreover, the examiner's opinion is premised on the absence of evidence of a threshold shift in service, yet (as discussed below) the evidence does not include the absence of a threshold shift at 3000 hertz. While the VA examiner's opinion is not probative, remand is not necessary to correct this error. In this regard, the Veteran's induction examination report and separation examination report do not show his auditory thresholds at 3000 hertz bilaterally. Thus, there is no evidence of record establishing the absence of hearing loss at 3000 hertz at separation, and the Veteran's report of incurring in-service combat hearing loss is consistent with the evidence of record. In this regard, while there is an audiogram in the file that corresponds to the auditory thresholds recorded in the Veteran's induction examination report and includes right ear hearing thresholds at 3000 hertz, there remains no evidence of hearing thresholds at 3000 hertz bilaterally at separation. See also Kelly v. Brown, 7 Vet. App. 471 (1995) (Board may interpret graphs). Additionally, while the examiner noted the Veteran's post-service history of occupational noise exposure, the Veteran reported always wearing hearing protection and the evidence does not show that his hearing loss was due to post-service occupational exposure. In sum, the Veteran's lay testimony establishes that hearing loss was incurred in combat, and there is no evidence of record that establishes otherwise or attributes the Veteran's current hearing loss is due to nonservice causes. As the evidence is in favor of the claim, the third and final element of entitlement to service connection for bilateral hearing loss is shown and 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.