Citation Nr: 22016758 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 19-29 383 DATE: March 23, 2022 ORDER Service connection for tinnitus is granted. Service connection for bilateral hearing loss (BHL) is granted. FINDINGS OF FACT 1. The evidence is in approximate balance as to whether the Veteran's tinnitus was incurred during service due to acoustic trauma and symptoms have been continuous since then. 2. The evidence is in approximate balance as to whether the Veteran's BHL was incurred during service due to acoustic trauma and symptoms have been continuous since then. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus has been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for BHL have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§3.102, 3.159, 3.303, 3.304, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran honorably served from December 1973 to August 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2018 rating decision. The Veteran testified before the undersigned Veterans Law Judge at a Board hearing in March 2021 and a transcript of those proceedings are of record. Service Connection Service connection requires evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and the disease or injury incurred or aggravated during active service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases, including organic diseases of the nervous system such as BHL and tinnitus, will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27Vet. App.258 (2015); 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a). 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. 1. Tinnitus The Veteran has been diagnosed with recurrent tinnitus. See July 2018 VA audiological examination. The Veteran stated during the March 2021 hearing that while serving aboard the USS Racine he assisted in loading large .50 caliber turrets during firing drills which occurred often. The Veteran further noted that he would have loud ringing in his ears for days after these drills despite the use of earmuffs. He also described using air-hose hammers to strip bulkheads on the deck and sides of the ship which were very loud and caused him acoustic trauma. The Veteran testified further that he has experienced ringing in his ears since leaving service which has progressively worsened over time. Notably, when a claim involves a disability such as tinnitus that is diagnosed based on purely subjective complaints, the Board is within its province to weigh the Veteran's testimony; determine whether it supports a finding of service incurrence and continued symptoms since service; and, if it does, find that service connection for the disability is established on that basis. Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Furthermore, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Veteran is entitled to the benefit of the doubt. 38 U.S.C. § 5107. Here, the Board finds that the Veteran's credible testimony regarding an in-service incurrence of his diagnosed tinnitus and a continuity of symptomatology places the evidence at least in approximate balance as to these elements of service connection. As a result, all three elements of service connection have been met, service connection for tinnitus is warranted and the claim is granted. 2. BHL The Veteran contends that service connection is warranted for BHL. As discussed, the Veteran stated during the March 2021 hearing that he was exposed to acoustic trauma during battle drills while serving aboard the USS Racine. The Veteran testified that he assisted in loading .50 caliber turret guns and used an air-hose hammer to strip paint from the sides and bulkheads of the ship. He stated further that he had symptoms of BHL during service with a continuity of symptoms since service that have progressively worsened. For the purposes of applying the laws 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, 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 was diagnosed with BHL for VA disability compensation purposes during the July 2018 VA audiological examination. As an initial matter, the Board finds that the Veteran's hearing testimony regarding his in-service noise exposure to be competent, credible, and consistent with his military occupational specialty (MOS). In this case, medical evidence shows a current BHL disability for VA compensation purposes pursuant to 38 C.F.R. § 3.385. The evidence also suggests a link between this BHL and the Veteran's military service. In this regard, the Veteran alleges military acoustic trauma, specifically firing heavy weapons such as .50 caliber turrets and constant exposure to loud machinery. The Veteran is competent to report such symptoms as decreased hearing acuity that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). In addition, based upon the evidence available, the Board presumes the occurrence of the Veteran's in-service acoustic trauma. While the July 2018 VA medical opinion indicates that the BHL is not related to the Veteran's military service, the Board notes that these opinions do not consider the pertinent lay evidence regarding a continuity of symptomatology. The examiner also stated that the Veteran's MOS carried a low probability of noise exposure without a fact-specific discussion of his repeated exposure to acoustic trauma from heavy weapons and machinery while serving aboard the USS Racine. In addition, these opinions note that on separation from service the Veteran was administered a whisper test which gives no ear or frequency information for measuring decibel loss in each ear respectively. Finally, the negative nexus opinion is largely based on the Veteran's inability at the time of the examination to recall the exact time his BHL began. The opinion recites that the Veteran stated that his symptoms began at least 20 years prior which the examiner construed to mean that he first noticed symptoms approximately 20 years ago. The Veteran clarified in his hearing testimony that he began experiencing during service and that his statements to the July 2018 VA examiner regarding the onset of his BHL were misconstrued in the opinion. Based on the foregoing, the Board does not place significant probative value on the July 2018 VA medical opinion. During March 2021 Board hearing, the Veteran testified that he has experienced BHL in a chronic nature since his discharge from military service. The Board finds this history to be credible testimony of continuity of hearing loss since the Veteran's discharge from military service. Given the Veteran's in-service acoustic trauma during his military service, along with his credible testimony of continuity of symptomatology since that time, the Board finds that there is an approximate balance of positive and negative evidence in this appeal. 38 C.F.R. §3.303(d). Resolving all remaining doubt in the Veteran's favor, the Board concludes that service connection for BHL is warranted. 38 U.S.C. § 5107(b). Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kyle McKone 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.