Citation Nr: 21010837 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 20-04 686 DATE: February 25, 2021 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. FINDINGS OF FACT 1. The weight of the competent and probative evidence is at least in equipoise as to whether the Veteran’s bilateral hearing loss manifested in or is otherwise related to his period of active service. 2. The weight of the competent and probative evidence is at least in equipoise as to whether the Veteran’s tinnitus manifested in or is otherwise related to his period of active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1101, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1101, 1112, 1131, 1137, 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 1960 to September 1962 with service in the Reserve component thereafter. This matter comes before the Board of Veterans’ Appeals (BOARD) on appeal from a September 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case has been advanced on the docket pursuant to 38 C.F.R. § 20.800(c). The Veteran testified at a virtual hearing in January 2021. A copy of the hearing transcript is associated with the claims file and has been reviewed. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). As a general matter, establishing service connection requires competent evidence of (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Certain chronic diseases, such as hearing loss and tinnitus, will be considered incurred in service if manifest to a degree of ten percent within one year of service. 38 C.F.R. §§ 3.307, 3.309(a). In a claim of service connection for impaired hearing, demonstration of the existence of a current disability is subject to the additional requirements of § 3.385, which provides that service connection for impaired hearing shall not be established until the hearing loss meets pure tone and/or speech recognition criteria. Under this regulation, hearing status will be considered a disability for the purposes of service connection when the auditory thresholds in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies 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. The Veteran is competent to report symptoms and experiences he can observe. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). The VA must give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 C.F.R. § 3.102. 1. Bilateral hearing loss 2. Tinnitus The Veteran contends that his active military service caused bilateral hearing loss and tinnitus. The weight of the competent and probative evidence warrants a finding that the Veteran’s bilateral hearing loss and tinnitus manifested in or is otherwise related to his period of active service. The record contains competent evidence of the current disabilities of bilateral hearing loss and tinnitus. The Veteran was afforded a VA examination in August 2018. Audiometric testing revealed bilateral hearing loss for VA purposes and recurrent tinnitus. August 18, 2018, VA Examination. Speech audiometry revealed speech recognition ability of 76 percent in the both ears, meeting the requirements of 38 C.F.R. § 3.385. The first Shedden element is met. During the virtual Board hearing, the Veteran provided competent and highly probative lay evidence establishing the in-service injury or occurrence requirement for bilateral hearing loss and tinnitus. The Veteran testified that he was exposed to loud noises at the firing range during training and as a heavy truck driver during active service. See January 5, 2021, Hearing Testimony. The Veteran explained that he knew he had some degree of hearing loss during service because after separation from service his hearing was not sufficient to obtain a job he had been offered before he was drafted. The Veteran further testified that he first noticed ringing in his ears while traveling from France during service. Indeed, there appears to have been a shift in his hearing thresholds between his entrance examination and separation. Turning to the third and final requirement, the nexus requirement, the competent and probative evidence is evenly balanced as to whether the Veteran’s current disabilities of hearing loss and tinnitus are related to his period of active service. The 2018 VA examiner opined that it was less likely than not that bilateral hearing loss and tinnitus were caused by or contributed to by military noise exposure. See August 18, 2018, VA Examination. The examiner’s opinion is rooted in the fact that the Veteran had hearing within normal limits upon enlistment and separation from service. In May 2019, the Veteran submitted a private audiological examination and medical opinion. See May 21, 2019, Medical Treatment Record – Non-Government. The private examiner opined that the Veteran’s bilateral hearing loss and tinnitus were more likely than not caused by military based noise exposure. The private examiner opinion is premised on the Veteran’s lay statements regarding military noise exposure and the onset of bilateral hearing loss and tinnitus, poorer hearing thresholds at 4000 hertz and 6000 hertz characterizing noise induced hearing loss, and the absence of other occupational or recreational noise exposure after service. (Continued on next page) As there is a proximate balance of positive and negative evidence regarding the nexus requirement, the Veteran is given the benefit of the doubt. Gilbert, 1 Vet. App. 49 at 57-58. Service connection for bilateral hearing loss and tinnitus is granted. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Monica Ball Jackson, 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.