Citation Nr: 21007812 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 18-29 361 DATE: February 10, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran’s favor, the Veteran’s bilateral hearing loss is related to service. 2. Resolving all reasonable doubt in the Veteran’s favor, the Veteran’s tinnitus began during service and has continued since. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303 3.307, 3.309, 3.385. 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1963 to August 1966. This matter comes before the Board of Veterans’ Appeals (Board) from a January 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.902(c). Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, to prove service connection there must be: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Moreover, where a veteran has served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and sensorineural hearing loss and tinnitus become manifest to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For the purposes of applying the law administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (specified frequencies) 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. “[W]hen audiometric test results at a veteran’s separation from service do not meet the regulatory requirements for establishing a ‘disability’ at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.” Hensley v. Brown, 5 Vet. App. 155, 160 (1993). 1. Entitlement to service connection for bilateral hearing loss The Veteran seeks service connection for bilateral hearing loss, which he asserts was caused by in-service noise exposure. During his October 2020 Board hearing, the Veteran testified that his hearing loss is a result of noise exposure from rifle and machine gun fire without hearing protection and noise from trucks he drove while serving in Germany. As an initial matter the Board finds that the Veteran has a current hearing loss disability pursuant to 38 C.F.R. § 3.385, as shown by a January 2017 VA examination. Moreover, service personnel records note the Veteran received an expert medal for the rifle during service and his military occupational specialty was light vehicle driver. Thus, the question becomes whether the Veteran’s bilateral hearing loss is related to service. On this question, there are opinions for and against the claim, the January 2017 VA examiner opined that the Veteran’s current bilateral hearing loss is less likely than not caused by service. In December 2020, the Veteran submitted a private audiological examination and opinion. The audiologist opined that the Veteran’s bilateral hearing loss is at least as likely as not caused by or a result of his in-service noise exposure. Upon review of the record, the Board finds that the competent and probative evidence is at least in equipoise as to whether the Veteran’s bilateral hearing loss is related to his military service. Accordingly, affording the Veteran the benefit of the doubt, service connection for bilateral hearing loss is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.   2. Entitlement to service connection for tinnitus The Veteran sought service connection for tinnitus, which he asserts began during service and has continued since. At the outset, the Board concedes the presence of a current tinnitus disability, as the Veteran is competent to testify to observable symptoms such as ringing in his ears and has done so credibly in this instance. See Layno v. Brown, 6 Vet. App. 465 (1994); Charles v. Principi, 16 Vet. App. 370 (2002) (finding lay person competent to attest to in-service acoustic trauma, in-service symptoms of tinnitus, and post-service continuous symptoms of tinnitus “because ringing in the ears is capable of lay observation”). Thus, the remaining question is whether the Veteran’s current tinnitus arose in or is related to service. When a condition may be diagnosed by its unique and readily identifiable features, as is the case with tinnitus, the presence of the disorder is not a determination “medical in nature,” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 305 (2007). When a claim involves a diagnosis based on purely subjective complaints, the Board is within its province to weigh the Veteran’s testimony and determine whether it supports a finding of service incurrence and continued symptoms since service. If it does, such testimony is sufficient to establish service connection. Id. Here, the Board finds the Veteran’s assertions that his tinnitus began in service and has continued since then to be credible. The Board acknowledges that the January 2017 VA examiner opined that the Veteran’s tinnitus is less likely than not caused by or a result of military noise exposure. However, the examiner did not appear to consider the Veteran’s competent and credible report that his tinnitus began during service and has continued since.   Upon review of the record, the Board finds the competent and credible evidence is at least in equipoise as to whether the Veteran’s tinnitus arose in service and has continued since. Accordingly, resolving all doubt in the Veteran’s favor, service connection for tinnitus is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Lance, 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.