Citation Nr: 18143546 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 17-04 068 DATE: October 19, 2018 ORDER Entitlement to service connection for tinnitus is granted. FINDING OF FACT Affording the Veteran the benefit of the doubt, his tinnitus has been shown to have been incurred during active service with symptoms ever since separation. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1952 to September 1956, and March 1957 to September 1957. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to service connection for left ear acoustic neuroma was also denied in the July 2016 rating decision. The Veteran included this issue in his July 2016 Notice of Disagreement, and the issue was listed in the December 2016 Statement of the Case. However, the Veteran declined to include the issue of service connection for left ear acoustic neuroma in his substantive appeal, and clearly indicated that he chose not to appeal this issue. Therefore, entitlement to service connection for left ear acoustic neuroma is not on appeal before the Board. Pursuant to his request, the Veteran was scheduled for a videoconference hearing before a Veterans Law Judge on April 20, 2018. On April 18, 2018, the Veteran submitted a letter requesting the hearing be rescheduled. The Veteran was notified in June 2018 that the hearing was rescheduled for July 20, 2018, but he failed to appear at the scheduled time and location. Under the applicable regulation, if an appellant fails to appear for a scheduled hearing and a request for postponement has not been received and granted, the case will be processed as though the request for a hearing had been withdrawn. 38 C.F.R. 20.702 (d) (2017). As no good cause has been alleged, the request for a hearing is considered withdrawn. Service Connection Service connection may be granted for a current disability resulting from a disease or injury incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also 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). Generally, establishing service connection requires (1) evidence of a current disability; (2) medical, or, in certain circumstances, lay evidence of 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). In addition to direct service connection, service connection may also be established under 38 C.F.R. § 3.303(b) if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. Tinnitus (an organic disease of the nervous system) is a chronic condition listed under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). Therefore, 38 C.F.R. § 3.303(b) is applicable. Service connection may also be established for tinnitus based upon a legal presumption by showing that a disorder manifested itself to a compensable degree within one year from the date of separation from service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.307, 3.309(a). The Board must determine, on a case-by-case basis, whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms, as symptoms require only personal knowledge of what is observed by using his senses, not medical expertise. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d at 1377. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). 1. Entitlement to service connection for tinnitus The Veteran contends his tinnitus was caused by in-service noise exposure. He explained in a February 2016 statement that as an ammunition loader during active service, he was regularly exposed to weapons being fired. He stated he noticed a ringing in his ears during service, and that it has continued since service discharge. The Veteran’s service treatment records show his service entrance and separation medical examinations were normal. There are no complaints of or treatment for an ear condition during service. VA medical records indicate the Veteran received an audiology consult in March 2002. He was noted to have a history of intermittent tinnitus. He also reported that he was a gunner’s mate in the military, and he spent thirty years post-service as a correction and security officer, which involved spending time at a firing range. VA treatment notes from September and October of 2016 show the Veteran reported having tinnitus that manifested as a constant crackling noise. In February and July of 2016, the Veteran’s private physician, Dr. A. Lauretano, submitted letters stating the Veteran has bilateral hearing loss due to military noise exposure. However, Dr. Lauretano did not specifically mention the Veteran’s tinnitus. The Veteran was afforded a VA examination in July 2016. The VA examiner confirmed that the Veteran’s file was reviewed, and acknowledged that his military occupational specialty (MOS) as a firearms assembler carried a high probability of hazardous noise exposure. The Veteran reported that he noticed tinnitus during service initially at night, and eventually during the daytime as it worsened. At the examination, the Veteran reported having a constant, crackling noise only in the left ear. The VA examiner stated he could not provide a medical opinion regarding the etiology of the Veteran’s tinnitus without resorting to speculation. He explained that though it is very likely that the onset of the Veteran’s tinnitus in his left ear was due to hazardous noise exposure during service, it is not possible to determine whether his current left-sided tinnitus is due to military noise exposure, or his left ear acoustic neuroma, as tinnitus is a common symptom in people with acoustic neuromas who have not been exposed to hazardous noise. While the VA medical opinion indicates that tinnitus was not caused by service, the Board finds that, after resolving doubt in the Veteran’s favor, the Veteran is entitled to service connection for tinnitus. The examiner did not provide a response regarding the Veteran’s right ear tinnitus, presumably due to the Veteran reporting only having a crackling noise in the left ear during the examination. The Board notes, however, that medical records from before and after the VA examination do not indicate the Veteran limited his tinnitus to the left ear. The Veteran is competent to report that tinnitus was incurred in service and that it has existed since service discharge. See 38 C.F.R. § 3.159 (a)(2); Charles v. Principi, 16 Vet. App. 370, 374 (2002); Jandreau, 492 F.3d at 1377. Not only was the Veteran routinely exposed to hazardous noise due to his MOS, but he has also consistently reported having ringing in both ears since service. Further, the Board notes that the Veteran is currently service connected for hearing loss based on the July 2016 VA examiner’s opinion that bilateral hearing loss was caused by military noise-exposure. Given the existence of evidence both for and against the claim, the Board finds that the evidence is in relative equipoise as to whether the Veteran’s tinnitus arose during active service. Upon resolution of all reasonable doubt in the Veteran’s favor, the Board concludes that service connection is warranted for tinnitus and the claim is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Laura Collins Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Miller, Associate Counsel