Citation Nr: 1800652 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 14-43 154 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for bilateral tinnitus. REPRESENTATION The Veteran represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD N. Robinson, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1968 to August 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In a February 2016 written statement, the Veteran withdrew his request for a Board hearing. The Veteran did not file a substantive appeal (VA Form 9) for the issues of entitlement to service connection for Meniere's disease, nausea, dizziness, bilateral hearing loss (also not listed on his notice of disagreement), and depression. Accordingly, these issues are not in appellate status and will not be addressed here. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his tinnitus was incurred during his active service. CONCLUSION OF LAW The criteria for service connection for bilateral tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Legal Criteria To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for certain chronic diseases (including tinnitus) if manifested to a degree of 10 percent or more within one year of separation from active service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Entitlement to service connection on the basis of a continuity of symptoms after discharge under 38 C.F.R. § 3.303(b) is also available for the diseases listed in 38 C.F.R. § 3.309(a). Factual Background VA and private medical records establish the Veteran's current tinnitus diagnosis. The dispositive issue is whether this disability began during or is otherwise related to his active service. During his November 2014 VA examination, the Veteran reported that his tinnitus began during service. Specifically, he reported first noticing tinnitus, which he described as excruciating ringing in his ears, in 1969 during artillery training. The examiner noted the Veteran's July 1970 separation audiogram showing an elevated right ear threshold at 4000 Hz and an August 1969 service treatment record noting a clogged left ear. The examiner also reviewed the Veteran's March 2000 dizziness episode and January 2003 Meniere's disease diagnosis. The examiner opined that the Veteran's tinnitus was less likely than not related to his service because it was more likely related to his Meniere's disease. In his December 2014 substantive appeal, the Veteran reported serving as the radio operator for an Army artillery unit. In this capacity, he was exposed to loud noises, and he noted ringing, buzzing, and roaring in his ears. He stated that these symptoms have continued from 1969 through the present. In an August 2016 written statement, Dr. V.C., of the head and neck surgery department at the Veteran's private treatment facility and his physician of 17 years, opined that the Veteran's tinnitus may be a direct result of his exposure to loud noises during military service. To support this opinion, Dr. V.C. stated he had reviewed the Veteran's medical and military history including exposure to artillery fire and Meniere's disease diagnosis. He noted that he has cared for the Veteran since April 2000 and emphasized his familiarity with his relevant medical history. Analysis After a careful review of the evidence, the Board finds that the evidence is at least in equipoise as to whether the Veteran's tinnitus was incurred during active service. The Veteran's DD Form 214 reflects that he was a radio operator and that he received sharpshooter M-14 and M-16 badges. Therefore, the Board finds his statements regarding in-service noise exposure to be competent and credible as they are consistent with his service. The Board also finds the Veteran's report of tinnitus symptom onset and persistence competent, credible, and highly probative of the fact that his tinnitus started in service and continued through to the present. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Although the August 2016 letter from his physician of 17 years, from the head and neck surgery department at the Veteran's private medical facility, is stated in speculative terms, it supports the Veteran's lay statements. In addition, the opinion reflects that Dr. V.C. has a long history of treating the Veteran, is familiar with his audiological conditions, and reviewed his military service history. Therefore, the Board places some weight of probative value on the opinion. The Board finds the November 2014 VA examiner's negative nexus opinion less probative because the examiner appeared to discount the Veteran's report of symptom onset without rationale. Resolving reasonable doubt in the Veteran's favor, the Board finds that a balance of the probative evidence of record supports a finding that his tinnitus was incurred in service. Accordingly, service connection is warranted. ORDER Service connection for bilateral tinnitus is granted. ____________________________________________ M. Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs