Citation Nr: 18141373 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 15-04 894 DATE: October 10, 2018 ORDER Entitlement to service connection for tinnitus is granted. FINDING OF FACT The Veteran currently suffers from tinnitus that was caused by acoustic trauma in service. CONCLUSION OF LAW In affording the Veteran the benefit of the doubt, the criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease that was incurred or aggravated during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires: (1) evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). Certain chronic diseases may be service connected on a presumptive basis if they manifested to a compensable degree within a specified period of time post-service. In such cases, evidence of a medical nexus is not required. Tinnitus is included as an organic disease of the nervous system, and it may be service connected if it manifested to a degree of at least 10 percent within one year after service. 38 U.S.C. §§ 1101(B)(3), 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For the showing of a chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Isolated findings or a diagnosis including the word “chronic” do not establish chronicity. 38 C.F.R. §§ 3.303(b), 3.307. If chronicity is not established in service or in the presumptive period, a continuity of symptoms after discharge can support a claim where a disability was otherwise noted in service. 38 C.F.R. § 3.303(b); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir 2013). If a chronic disease is diagnosed after separation from service and not within any applicable presumptive period, service connection may still be granted if all the evidence establishes that it was incurred in service. 38 C.F.R. § 3.303(d). Tinnitus, in particular, is a unique disability, as it is defined as being subjective, with its diagnosis generally determined by whether a lay person claims to experience it. See Smith v. Principi, 17 Vet. App. 168, 170 (2003) (quoting Dorland’s Illustrated Medical Dictionary [hereinafter DORLANDS] 1714 (28th ed. 1994)); DORLANDS, 1956 (31st ed. 2007); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination that is “medical in nature,” and it is capable of lay observation. With specific regard to tinnitus, a veteran is competent to testify to in-service acoustic trauma, in-service symptoms, and post-service symptoms because “ringing in the ears is capable of lay observation.” Barr v. Nicholson, 21. Vet. App. 303, 309 (2007); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). Accordingly, the Veteran is competent to provide a diagnosis and the causal link or nexus to service. In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the veteran. 38 U.S.C. § 5107; 28 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran contends that he has tinnitus that was caused by acoustic trauma that he sustained in service. Indeed, his service records confirm that he was a rifleman in the Marine Corps, which is a position that involves a high probability of noise exposure. In a June 2013 written statement, the Veteran explained that he has experienced ringing in his ears since bootcamp. Specifically, he stated that the ringing began during training on the rifle range and that “the worst part was when I was pulling targets” because the noise was deafening, and his ears rang ever since. At his June 2013 VA examination, the Veteran reported additional noise exposure from tanks, grenade explosions, shotguns and various ship noises. Later, in his January 2014 Notice of Disagreement, the Veteran reiterated that he experienced ringing in his ears since training on the rifle range in 1974, and as a result of training with tanks, riding in helicopters and C-120 transport planes, and working in the cargo hold of ships, all without hearing protection. He asserted that his condition remained unchanged since separation from service. At his July 2018 hearing before the Board, the Veteran expanded on his assertions, reiterating that he noticed ringing in his years in September or October of 1974 when he began artillery training and that the ringing remained ever since. He explained that, throughout service, he worked with small and large arms, and around tanks, helicopters and on ships. He confirmed that he did not have any kind of ear protection on the rifle range during basic training. He recounted that the noise, while pulling targets on the rifle range, was “unbelievable” as there were “probably 150 guys that shot 200 or 300 rounds while [I] was back there.” He explained that the ringing in his ears did not stop him from doing his job, but “it was definitely an issue.” Finally, in a July 2018 written statement, the Veteran stated that he is confident the ringing in his ears is a direct result of his service because that is when the ringing began. He explained that, at first, he believed the ringing would go away because it would sometimes subside after time passed following loud explosions; but, later, it became louder and more constant. He detailed the noise exposure that he set out in previous statements, and he reiterated the fact that he was not provided ear protection. At times, he said, servicemen would use cigarette butts to try to save their hearing. The Veteran is competent to report noise exposure in service because it is observable by his senses and part of his personal experience. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Moreover, it is consistent with the circumstances of his service and, specifically, his experience as a rifleman in the Marine Corps. 38 U.S.C. § 1154(a). Thus, the Board finds that the Veteran was exposed to extreme noise during service. At a June 2013 VA examination for hearing loss and tinnitus, the examiner acknowledged that the Veteran reported recurrent tinnitus that he first noticed during bootcamp. However, he concluded that the Veteran’s tinnitus was less likely than not caused by his military noise exposure because tinnitus is known to be associated with hearing loss, which the examiner also found was not related to service because the Veteran’s hearing was within normal limits when he was discharged. In concluding so, the examiner acknowledged that the Veteran’s audiogram at entry into service is illegible, which made it impossible to determine whether the Veteran experienced a shift in his hearing during service. Indeed, the Veteran’s audiogram taken at enlistment is unhelpful. Regarding the right ear, notations at 1000, 2000, 3000 and 4000 Hertz appear to only be a check-mark, while the notation at 500 Hertz appears to be a zero. As for the Veteran’s left ear, the notations at 500, 1000, 2000 and 3000 Hertz appear to be only a check-mark; and the notation at 4000 Hertz appears to be 10 decibels. The Board cannot, therefore, determine whether the Veteran’s hearing levels shifted during service. However, the Board notes that the Veteran also underwent a “whisper test” at entry into service that revealed normal hearing bilaterally. Although the whisper test is not frequency-specific, it is evidence that the Veteran’s hearing was grossly intact prior to service. Taken together with the Veteran’s separation examination, the evidence leaves open the possibility that the Veteran’s hearing experienced a shift during service. The audiogram taken at separation measured the Veteran’s auditory thresholds in the right ear as 10 decibels at 500 Hertz and 1000 Hertz, 5 decibels at 2000, 3000 and 4000 Hertz, and 20 decibels at 6000 Hertz. The Veteran’s auditory thresholds in the left ear were 30 decibels at 500 Hertz and 4000 Hertz, 15 decibels at 1000, 2000 and 3000 Hertz, and 20 decibels at 6000 Hertz. Although these measurements indicate that the Veteran’s hearing was within normal limits, according to VA standards, the relatively high measures, particularly in the left ear, suggest the possibility that a shift in the Veteran’s hearing may have taken place during service. Although the Board cannot find, for certain, that a shift took place, it also cannot affirmatively state that there was no such shift. Since tinnitus is often a symptom of hearing loss, as stated by the examiner, a possible shift in the Veteran’s hearing during service suggests that the Veteran’s tinnitus may have had its onset during service. This conclusion is supported by the fact that the Veteran has not been exposed to extreme noise since separation from service. At his hearing and in his July 2018 statement, the Veteran explained that, following service, he worked in a casino and as bouncer and a bartender in small establishments where the jukebox and the patrons were the primary source of noise. At his VA examination, the Veteran reported that, since service, his only exposure to extreme noise was when a car battery blew up while he was repairing a vehicle. Based on the foregoing, the Board finds that service connection for tinnitus is warranted in this case. Given the unique nature of tinnitus that allows for lay diagnosis, the Veteran’s competent reports of in-service noise exposure, and the possibility that the Veteran experienced a shift in his hearing levels by separation from service, the Board finds that the evidence as to service connection for tinnitus is in equipoise and it resolves all reasonable doubt in favor of the Veteran. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The claim for service connection for tinnitus is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Freda J. F. Carmack, Associate Counsel