Citation Nr: 21032288 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 16-16 808 DATE: May 26, 2021 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. FINDINGS OF FACT 1. Resolving any doubt in the Veteran's favor, his current bilateral hearing loss originated in service. 2. Resolving any doubt in the Veteran's favor, his current tinnitus was caused by his service-connected bilateral hearing loss. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are approximated. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.385. 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1964 to August 1966, January 1991 to March 1991, and National Guard service with periods of inactive duty for training (IDT). In March 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). During the hearing, the VLJ engaged in a discussion with the Veteran towards substantiating the claims. Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). The hearing transcript is in the record. The Board of Veterans' Appeals (Board) denied the claims in a November 2019 decision. In January 2021, the Court of Appeals for Veterans Claims (Court) vacated the denial and remanded the claims and directed the Board to determine whether additional development was needed to obtain post-service hearing tests; address inadequacies of a negative VA opinion; and reconsider a private medical opinion and treatise evidence submitted by the Veteran. The Board has determined that additional development is not necessary and will grant the claim based on the benefit of the doubt doctrine. Service connection for bilateral hearing loss and tinnitus VA awards service connection for disabilities resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). "Direct" service connection requires: (1) a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus (a causal relationship) between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge may still be service-connected if the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Additional rules apply to service connection for hearing loss. See 38 C.F.R. § 3.385. Under this rule, impaired hearing is considered a disability only if at least one of the thresholds for the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of the frequencies are greater than 25 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385; Hensley v. Brown, 5 Vet. App. 155 (1993). In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Veteran has a current diagnosis of hearing loss and tinnitus and VA has recognized his in-service noise exposure. In April 2015, a private audiologist opined that the Veteran's hearing loss was likely caused by exposure acoustic trauma during service. The examiner noted the Veteran's military occupational specialty (MOS) of drill sergeant and reports of exposure to rifle artillery, mortars and tanks, and that he was not provided ear protection early in his military career. The examiner based her opinion solely on the Veteran's account and did not review his service treatment records or other pertinent medical records. In June 2015, a VA audiologist opined that the Veteran's current bilateral hearing loss was not caused by service because a 1966 separation examination indicated normal hearing. As the Veteran noted, under the Hensley case, the absence of documented hearing loss in service is not by itself a sufficient basis to deny service connection. Additionally, the VA examiner apparently did not consider the Veteran's second period of active service in 1991. The examiner also referenced but did not explaina 1981 National Guard audiogram documenting hearing loss that did not meet the criteria of 38 C.F.R. § 3.385. With respect to the cause of the Veteran's bilateral hearing loss, the evidence is approximately balanced. Although the private medical opinion did not discuss the Veteran's medical history in detail, the negative VA opinion was deficient based on the Hensley case and failed to address the Veteran's complete periods of active service and IDT. With respect to tinnitus, the VA examiner opined that the condition was caused by hearing loss. The Board will resolve any doubt in the Veteran's favor and grant both claims. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Hiaasen The Board's decision applies only to this case. This action is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.