Citation Nr: 21020998 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 15-32 476 DATE: April 9, 2021 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. Bilateral hearing loss had its onset during active service. 2. Tinnitus had its onset during active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1110, 1112, 1113, 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. §§ 1110, 1112, 1113, 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 in the United States Army from March 1966 to March 1968. This claim comes before the Board of Veterans’ Appeals (Board) on appeal of a June 2014 rating decision by a regional office (RO) of the Department of Veterans Affairs (VA). The claim was remanded by the Board in February 2019 for further development. The appeal has since been returned to the Board upon satisfaction of the remand directives. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or “nexus” between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). However, when a condition may be diagnosed by its unique and readily identifiable features, 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, 309 (2007). Some chronic diseases may be presumed to have been incurred in service if they become manifest to a degree of 10 percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Hearing loss and tinnitus are listed conditions, as organic diseases of the nervous system. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For the purposes of applying the law administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. See 38 C.F.R. § 3.385. VA records show the Veteran has hearing loss within the meaning of 38 C.F.R. § 3.385 in that the auditory thresholds at 2000, 3000, and 4000 are greater than 35hz on the left ear and 40hz on the right ear. The Veteran also competently and credibly reports the presence of tinnitus. Therefore, the first element of service connection is met. VA treatment records contains statements, by the Veteran, of exposure to hazardous noise during firearms training. Specifically, the Veteran noted firing hundreds of rounds from the M-14 rifle. Such is consistent with his service, and noise exposure is established. The final element is a nexus between current disability and in-service noise exposure. Service treatment records show no significant changes in the puretone thresholds measured between induction and separation; hearing was normal. At separation, the Veteran denied any hearing loss problems. However, the Veteran reports he was provided with minimal hearing protection in the form of round foam inserts and that his hearing loss and tinnitus have occurred since service. A buddy statement from a fellow servicemember corroborates the Veteran’s complaints of hearing loss since his separation from active duty and throughout his Army Reserve service. The Veteran was afforded a VA examination in June 2014. The examiner opined that hearing loss was less likely than not caused by or a result of an event in military service, as hearing was normal at entrance and at separation. The examiner cited the American College of Occupational Medicine Noise and Hearing Conservation Committee’s statement saying, “a noise induced hearing loss will not progress once it is stopped.” “[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). The examiner failed to consider the competent and credible lay statements by the Veteran and his buddy regarding onset of hearing loss and tinnitus. Effectively, the examiner failed to distinguish between the first instance of impaired hearing acuity and tinnitus, and a clinical diagnosis of hearing loss disability. Therefore, the board Finds the June 2014 nexus opinion inadequate and assigns no probative weight. No opinion was rendered regarding tinnitus. Accordingly, the sole probative evidence regarding a nexus with regard to either condition is the competent and credible lay reports of onset in service and continuity of symptoms since that time. Therefore, the preponderance of the evidence favors the claim, and service connection for bilateral hearing loss and tinnitus are warranted. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Nolan, Shane D. 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.