Citation Nr: 21029300 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 17-48 101 DATE: May 13, 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 doubt in the Veteran's favor, his bilateral hearing loss disability was incurred in his active military service. 2. Resolving reasonable doubt in the Veteran's favor, his tinnitus was incurred in his active military service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. § 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for tinnitus are met. 38 U.S.C. § 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from April 1970 to February 1973. He is the recipient of a National Defense Service medal, a Vietnam Campaign medal, and a Vietnam Service medal with three Bronze Star medals. This appeal comes to the Board of Veterans' Appeals (Board) from a March 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge (VLJ) in September 2020. The Board hearing transcript is of record. Entitlement to service connection for bilateral hearing loss and tinnitus are granted. The Veteran seeks service connection for bilateral hearing loss and tinnitus due to in-service hazardous noise exposure. At the September 2020 Board hearing, the Veteran testified that he was exposed to hazardous noise during basic training, when he trained with an M14 rifle and on the brigade range, and during combat, when he supervised communications with troops in the field and was exposed to mortar, artillery and rocket fire. See September 2020 Board hearing transcript. 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). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed 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. In addition, for certain chronic diseases, such as hearing loss and tinnitus, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). If not shown as chronic during service or if a diagnosis of chronicity is legitimately questioned, continuity of symptomatology after service is required. 38 C.F.R. § § 3.303 (b). Continuity of symptoms may establish service connection only for those diseases listed in 38 C.F.R. § § 3.309 (a). 38 U.S.C. § §§ 1101, 1112; 38 C.F.R. § §§ 3.303 (b), 3.307(a)(3), 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Service connection is also warranted for a disease first 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). If the Veteran engaged in combat with the enemy, and it is claimed that a disease or injury was incurred in such combat, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (d). Even where the combat presumption applies, a veteran must still show that a causal relationship exists between the present disability and the in-service injury or disease. Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). Service connection for impaired hearing shall only be established when hearing status, as determined by audiometric testing, meets specified pure tone or speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels), over a range of frequencies (in Hertz). See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). 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. 38 C.F.R. § 3.385. The Veteran has current diagnoses of bilateral hearing loss for VA purposes and tinnitus. See January 2017 VA examination. Thus, the first element of service connection, the presence of current disabilities, has been met. The evidence supports a finding of in-service hazardous noise exposure. The Veteran's Form DD-214 shows that he was awarded three Bronze Star medals, a medal consistent with combat participation, thus, the combat presumption, described in 38 U.S.C. § 1154 (b) applies to the Veteran's claims. Accordingly, by applying 38 U.S.C. § 1154 (b), the Board concludes that the Veteran sustained acoustic trauma, decreased hearing acuity, and tinnitus during combat operations. The remaining issue is whether the current bilateral hearing loss and tinnitus disabilities are related to the in-service injury and disease. At the September 2020 Board hearing, the Veteran testified that he was trained as a radio mechanic and as a paratrooper, and that he underwent severe acoustic trauma during his combat service in the Republic of Vietnam. He described exposure to hazardous noise at the firing range, as well as during combat from mortar, artillery, and rocket fire. He testified that his bilateral hearing loss and tinnitus began following such in-service acoustic trauma, continued post-discharge from service to the present day. See, e.g., the September 2020 Board hearing transcript. The Board finds that, given the application of 38 U.S.C. § 1154 (b) as explained in Reeves, the Veteran's lay testimony provides a sufficient basis to conclude that his current bilateral hearing loss and tinnitus disabilities are related to the acoustic trauma he suffered in service. As previously mentioned, a nexus may be established through continuity of symptomatology. There is competent and credible lay evidence that the Veteran has continuously had symptoms of bilateral hearing loss and tinnitus. As previously noted, the Veteran had a VA examination for hearing loss and tinnitus in January 2017. The examiner stated that the Veteran served in the Army infantry for four years and reported that he served for 19 months in Vietnam. He denied post-service recreational noise exposure. The examiner opined that the Veteran's bilateral hearing loss and tinnitus are not at least as likely as not caused by or a result of an in event in military service. As rationale, the examiner stated that the Veteran's enlistment audio examination and separation from service audiological examination show bilateral hearing within normal limits. The Board assigns no probative value to this opinion, as regulations do not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service. 38 C.F.R. § 3.385; Hensley, supra; Ledford v. Derwinski, 3 Vet. App. 87 (1992). Further, the examiner did not address the Veteran's lay reports of significant in-service hazardous noise exposure as the cause of his bilateral hearing loss and tinnitus. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (VA opinion found to be inadequate where examiner ignores lay statements). The Board finds that entitlement to service connection for bilateral hearing loss and tinnitus are warranted and are thus granted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Susan Leary 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.