Citation Nr: 22017122 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 20-01 318 DATE: March 24, 2022 ORDER 1. Entitlement to service connection for a left ear hearing loss disability is granted. 2. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran has a current left ear hearing loss disability for VA compensation purposes. 2. The competing lay and medical evidence is in 'approximate balance' regarding a left ear hearing loss disability, and therefore, the Board resolves the benefit of the doubt in favor of the appellant. 3. The Veteran's tinnitus had its onset during active duty and has continued since that time. CONCLUSIONS OF LAW 1. The criteria for service connection for a left ear hearing loss disability have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1154, 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 1968 to June 1971. In February 2022, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A transcript of the hearing is not yet of record. This issue is rendered moot since the claims on appeal are being granted in this decision. Service Connection Service connection may be granted for a disability 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). To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 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). For the purpose 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, or 4000 Hertz (Hz) is 40 decibels or greater; or when 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. For certain chronic disorders, to include tinnitus, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In such cases, the disease is presumed under the law to have had its onset in service even if there is no evidence of such disease during service. 38 C.F.R. § 3.307(a); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). 1. Entitlement to service connection for a left ear hearing loss disability. 2. Entitlement to service connection for tinnitus. The Veteran contends his left ear hearing loss and tinnitus are the result of acoustic trauma in service. On the August 2018 Correspondence, the Veteran noted that in 1969 a 122mm rocket landed outside of his hooch as he was exiting. The left side of his face was towards the explosion. He told a doctor at the medical dispensary that he could not hear from left ear as a result of the explosion. His ear was checked and found to not be ruptured. The Veteran was told to keep cotton packed in his ear to prevent further damage to the eardrum. His hearing returned five to six weeks later. Tinnitus started at that time and has never gone away. The Board has carefully reviewed the evidence of record and finds that the evidence supports the grant of service connection for a left ear hearing loss disability and tinnitus. The reasons follow. As to evidence of a current disability, the Veteran's left ear hearing loss meets the requirement of a current left ear hearing loss disability for VA purposes as documented in the June 2018 VA audiological evaluation. 38 C.F.R. § 3.385. The Veteran credibly testified that he has experienced tinnitus since service. Tinnitus is a disability capable of lay observation; therefore, the Board considers his testimony sufficient evidence a disability. Therefore, the Veteran meets the first element of a service-connection claim. As to evidence of an in-service disease or injury, where a veteran engaged in combat, satisfactory lay evidence that an injury or disease was incurred in service will be accepted as sufficient proof of service connection where such evidence is consistent with the circumstances, conditions, or hardships of service. 38 U.S.C. § 1154(b). The combat rules not only reduce the evidentiary burden for establishing in-service injury but allow a combat veteran to use "satisfactory lay or other evidence" to establish that he incurred the disability itself in service, even in cases where "there is no official record" that such injury or disability occurred. Reeves v. Shinseki, 682 F.3d 988, 998 (Fed. Cir. 2012). Here, the Veteran earned the Vietnam Service Medal with three bronze service stars, and thus combat service is confirmed. In his August 2018 and September 2019 lay statements, the Veteran credibly reported that a rocket landed in front of his hooch while in Vietnam. The Veteran's lay statements are therefore sufficient to show acoustic trauma due to combat, and the in-service injury element of the claim for service connection for a left ear hearing loss disability and tinnitus has therefore been met. See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). Moreover, the fact that the claimed cause of the Veteran's left ear hearing loss and tinnitus, i.e., acoustic trauma from exposure to a nearby rocket explosion during combat service, is therefore established by his statements, does not prevent him from also invoking the section 1154(b) presumption in order to show that he incurred the disability itself while in service. Reeves, 682 F.3d at 999. As to evidence of a nexus between the current disability and service, the Board finds the evidence supports a nexus. Specifically, there is evidence for and against a nexus. For example, the Veteran underwent a VA examination in June 2018. The examiner provided a negative nexus. The examiner opined that hearing thresholds at entrance and separation were within normal limits. According to the American College of Occupational Medicine Noise and Hearing Conservation Committee, noise induced hearing loss will not progress once it is stopped. Therefore, current hearing loss is less likely than not related to military noise exposure. While he was exposed to high levels of noises in service, there was a several year gap of any medical documentation for complaints of hearing loss and civilian exposure as a police officer is more likely to be the cause as the exposure is over years rather than a one-time injury. Similarly, according to the Noise Manual, Fifth Edition, only seldom does permanent tinnitus occur without hearing loss. The Veteran's medical records show no significant changes in hearing from enlistment to separation. Therefore, the tinnitus is less likely as not related to military service or military noise exposure. The Board finds the Veteran's report of temporary left ear hearing loss in service and later difficulty with his left ear hearing support a nexus between the in-service rocket explosion and left ear hearing loss. The Veteran's wife also reported left ear hearing that was worsened since service. The Veteran and his wife have also reported tinnitus that began in service and has continued since that time. Based on the Veteran's competent and credible statements regarding the onset and continuity of his tinnitus symptoms, the Board finds that the evidence supports continuity of symptoms since service. The Board also finds the evidence of record is in 'approximate balance' regarding a nexus between left ear hearing loss and service. Accordingly, resolving all reasonable doubt in favor of the Veteran, service connection for a left ear hearing loss disability and tinnitus is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, 3.303(b). J. NICHOLS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. McDaniels, 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.