Citation Nr: 18153883 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 16-46 868 DATE: November 28, 2018 ORDER Entitlement to service connection for tinnitus is granted. FINDING OF FACT Resolving all reasonable doubts in the Veteran’s favor, it is at least as likely as not that the Veteran’s tinnitus had its onset during his active duty service and has continued since that time. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1990 to February 1998. 1. Entitlement to service connection for tinnitus The Veteran asserts entitlement to service connection for tinnitus due to active service. See July 2013 Compensation Claim. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link, or nexus, between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). With respect to the current appeal, that list includes organic diseases of the nervous system (including tinnitus and sensorineural hearing loss). See 38 C.F.R. 3.309(a). The Board finds that the evidence supports a finding of service connection for tinnitus. First, the record demonstrates that the Veteran currently has tinnitus. Specifically, the Veteran has reported that he experiences recurrent tinnitus. See March 2014 VA Examination. For VA purposes, tinnitus has been found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that the Veteran was competent to testify as to ringing in the ears in service and that he experienced such ringing ever since service “because ringing in the ears is capable of lay observation”). Thus, the requirement for a present disability has been met. Shedden, supra. Second, the record supports a finding of an in-service incurrence. As the Veteran is already service-connected for bilateral hearing loss, inservice noise exposure has been conceded. See October 2018 Codesheet. Thus, the requirement for an in-service incurrence has been met. See id. With regard to the third Shedden element, the Board finds that the evidence conflicts. The Veteran underwent a VA examination in March 2014. The examiner opined that it was less likely than not that the Veteran’s tinnitus was caused by his service because the examiner found the onset of tinnitus to be in 2011 and that there was no evidence “at this time” that supports the concept of delated onset. In contrast, the Veteran reported the onset of tinnitus in service and that he had experienced tinnitus since his active service. See October 2014 NOD. The Board notes that while the Veteran denied tinnitus during his November 2009 and July 2012 VA examinations, it remains unclear if the Veteran was denying experiencing tinnitus during those examinations or denying ever experiencing tinnitus. The Board finds the Veteran’s statement concerning continuity of symptomatology to be competent and credible. Further, because for chronic diseases such as tinnitus, nexus may be satisfied through a demonstration of in-service continuity of symptomatology, 38 C.F.R. §§ 3.303(b), 3.309; see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015) (finding that tinnitus is a chronic condition for purposes of 38 C.F.R. § 3.309(a)), the Board finds the Veteran’s lay assertions supportive of a finding of nexus. See Shedden, supra. (continued on next page) Given that the evidence for and against the claim is in relative equipoise, the Board will resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In resolving all reasonable doubt in the Veteran’s favor, the Board finds that the final element of service connection is established. See Walker, 708 F.3d 1331; see Fountain, 27 Vet. App. 258. Accordingly, service connection for tinnitus is warranted. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Gandhi, Associate Counsel