Citation Nr: 18151118 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 14-40 488 DATE: November 16, 2018 ORDER Service connection for tinnitus is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran’s current tinnitus is the result of noise exposure during his active military service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 C.F.R. §§ 1101, 1110, 1154(a); 38 C.F.R. §§ 3.159(a), 3.303, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty military service from July 1963 to July 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision, which, in pertinent part, denied service connection for tinnitus. Entitlement to service connection for tinnitus Service connection will be granted for a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where the Veteran asserts entitlement to a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service, but an award solely on this basis is only permissible if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). In the present case, the Veteran asserts that his tinnitus is the result of noise exposure incurred during military service. The evidence shoes a current diagnosis of tinnitus. See 02/18/2014, CAPRI. Accordingly, a present disability has been established by the evidence. A review of the Veteran’s DD-Form 214 reveals his military occupational specialty (MOS) was a light weapons infantryman. Furthermore, his personnel records reveal he worked as a grenadier and machine gunner while in service. Accordingly, in-service noise exposure has been established as consistent with the types, places, and circumstances of the Veteran’s active service. 38 U.S.C. § 1154. Having established a current disability and conceded in-service noise exposure, the remaining question is whether the Veteran’s tinnitus is due to noise exposure during his active military service. Service treatment records are negative for treatment or diagnosis of tinnitus. The Veteran indicated that he initially noticed tinnitus after discharge. In a January 2013 audiology consult, he reported having tinnitus in his right ear for 15 to 20 years. He denied working in a loud noise environment as a supervisor of maintenance for a city. He denied recreational noise exposure. He indicated that he was in the infantry in service. A VA examination was performed in February 2014, at which time the examiner indicated that tinnitus was not caused by or the result of military noise exposure given that tinnitus was a symptom of hearing loss and there was no nexus between the Veteran’s hearing loss and military service. After a review of the evidence, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s current tinnitus is related to noise exposure during his active military service. In this regard, the Veteran has conceded in-service noise exposure. The Veteran denied post-service noise exposure in his job and recreationally. Furthermore, the Veteran indicated that he initially noticed tinnitus after discharge. The Board acknowledges the negative opinion provided by the February 2014 VA examiner. However, the Board gives little weight to this opinion. In this regard, the examiner concluded that the Veteran’s tinnitus was a symptom of hearing loss and, therefore, could not be related to service given that his hearing loss was not related to service. The Board notes that tinnitus is a separate and distinct diagnosis from hearing loss. Furthermore, the examiner failed to acknowledge or discuss the Veteran’s in-service noise exposure with regard to his tinnitus, or his statements indicating that he noticed tinnitus after discharge. Lastly, although the Veteran indicated in 2013 that he noticed his right ear tinnitus 15-20 years prior, he also confirmed that he had no post-service noise exposure and continued to state that he noticed tinnitus after discharge. Finally, given that tinnitus (organic disease of the nervous system) is a chronic disease under 38 C.F.R. § 3.309(a), service connection may be awarded solely based on evidence of continuity of symptomatology. In view of the foregoing, and in consideration of the Veteran’s conceded in-service noise exposure and the lack of post-service noise exposure, the Board finds that the evidence is at least in equipoise regarding the question of whether the Veteran’s tinnitus is the result of military service. In cases where the evidence is in relative equipoise, the claimant prevails and service connection for tinnitus is warranted. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Hurley, Associate Counsel