Citation Nr: 18157502 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 16-51 877 DATE: December 13, 2018 ORDER Entitlement to service connection for tinnitus is granted. FINDING OF FACT 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 April 1989 to September 1996, September 2003 to December 2003, June 22, 2004 to June 26, 2004, May 24, 2005 to May 29, 2005, March 2006 to May 2006, December 2007 to March 2008, June 17, 2008 to June 30, 2008, and July 2008 to December 2012. 1. Entitlement to service connection for tinnitus The Veteran asserts entitlement to service connection for tinnitus due to active service. See December 2013 Application for Disability Compensation. 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 September 2016 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. During his September 2016 VA Examination, the Veteran recounted that he was exposed to loud jet noise, often sitting next to a loud cooling system. He was also an instructor and had to remove his hearing protection to hear others. He also mentioned that he was in open cockpits with the engines running. The Veteran noted that while he did wear foam hearing protection helmets, he did not feel that they were effective, noting a bad seal. Indeed, the Veteran’s DD-214 indicates that he served as a flight instructor. The Board finds the Veteran’s statements to be credible. 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 September 2016. The examiner opined that it was less likely than not that the Veteran’s tinnitus was caused by his service because the Veteran did not report tinnitus during service and there was no significant change in his hearing at separation. In contrast, the Veteran reported the onset of tinnitus within one year of his service ending and he has also reported that he has had ringing in his ears since his service. See December 2013 Application for Disability Compensation. 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