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Board failed to determine if Veteran entitled to combat presumption for tinnitus, hearing loss

Board failed to determine if Veteran entitled to combat presumption for tinnitus, hearing loss

Summary

The Veteran served on active duty in the United States Army from September 1966 to September 1968. As a light vehicle driver in Vietnam, he delivered artillery rounds to soldiers. He was exposed to loud noise when soldiers fired the artillery weapons while he was making his deliveries. The Veteran filed claims for service connection for hearing loss and tinnitus in June 2011. Regional Office denied service connection after a VA examiner opined that the Veteran’s hearing loss and tinnitus were less likely as not related to service. The Veteran appealed to the Board.

 

Board denied service connection

In November 2016, the Board denied service connection for tinnitus and hearing loss. The Board found that the Veteran did not have a current left ear hearing loss disability for VA compensation purposes. It also found that the Veteran’s receipt of a sharpshooter badge and his military occupational specialty as a light vehicle driver supported his statements that he was exposed to significant noise from small arms fire in service. Nonetheless, the Board denied service connection for right ear hearing loss and tinnitus.

 

CCK appeals to the Court

CCK successfully appealed to the Court the Board’s denial of service connection for the Veteran’s right ear hearing loss and tinnitus. CCK argued that the Board erred when it failed to consider entitlement to service connection under a theory of continuity of symptomatology, and when it found the Veteran’s assertions were not credible. In addition, CCK argued that the Board was incorrect in finding there were “inconsistencies” in the record as well as when it relied on an inadequate examination.

 

CAVC remands the claims

The Court concluded that the Board erred in failing to determine whether the Veteran engaged in combat and was therefore entitled to the statutory protections afforded to lay testimony under 38 U.S.C. § 1154(b). Section 1154(b) allows a combat veteran to use “satisfactory lay or other evidence” to establish that he was injured or incurred a disability while on active duty, even in cases where “there is no official record” that such injury or disability occurred, as long as it is consistent with the circumstances, conditions, or hardships of service. The Court found that although the Board appeared to have accepted the Veteran’s contention that he experienced exposure to loud noise from artillery being fired while making his deliveries, it failed to address whether this is considered combat under the combat presumption. It remanded the case for the Board to make this determination.

 

Click here to read the Court’s decision.

Category: Court Wins

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