Citation Nr: 18158950 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 18-19 326 DATE: December 18, 2018 ORDER Entitlement to service connection for tinnitus is granted. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, he has tinnitus that began in service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1957 to August 1959. In his April 2018 Substantive Appeal, the Veteran requested a Board hearing. However. in August and September 2018, the Veteran reflected his desire to withdraw his hearing request. 38 C.F.R. § 20.704(e). Therefore, there is no outstanding hearing request. In its April 2016 rating decision, the Agency of Original Jurisdiction (AOJ) granted entitlement to service connection for hearing loss. Therefore, as the issue has been granted in full, it is not before the Board. Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). Entitlement to service connection for tinnitus A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Entitlement to service connection requires: (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for disability shown after service, when all the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). Analysis The Veteran contends that his tinnitus is due to his military service. The Veteran has a current diagnosis of tinnitus. As such, element one under Shedden is met. The Veteran stated that he was exposed to loud noises when he served as an Infantryman. Consistent with the Veteran’s assertion, his military personnel record notes that he was assigned as a cannoneer in the Howitzer section. Thus, the second Shedden element is satisfied. The disposition of this appeal turns on whether the Veteran’s tinnitus was incurred during service, or, resulted from an in-service injury or event. In March 2016, the Veteran was afforded a VA examination to determine the nature and etiology of his tinnitus. The Veteran denied any history of tinnitus or noise exposure prior to military service. He stated that his MOS was Infantryman and 9th Field Artillery. He reported some noise exposure after military service. The Veteran reported that his tinnitus began 15 years before the VA examination. The examiner opined that the Veteran’s tinnitus was less likely than not (less than 50 percent probability) caused by or a result of military noise exposure. The examiner stated that tinnitus can be a precursor to hearing loss in cases of acoustic trauma; however, the Veteran reported both tinnitus and hearing loss were approximately 15 plus years prior to the exam. But, the Veteran’s service and noise exposure were 50 plus years ago. In November 2017, the Veteran was afforded another VA examination to determine the nature and etiology of his tinnitus. The Veteran reported that he was exposed to acoustic trauma during military service. The Veteran stated that overtime, he adjusted to the tinnitus. The examiner confirmed the Veteran’s tinnitus. However, the examiner could not provide a medical opinion regarding the etiology of the Veteran’s tinnitus without resorting to speculation. The examiner stated that excessive noise exposure is known to cause tinnitus. However, based on the chronology of the Veteran’s self-reported symptoms and lack of documentation in the claims file, the examiner was unable to make a medical opinion. In his April 2018 substantive appeal, the Veteran stated that he began having problems with tinnitus since his artillery training. Based on the evidence of record and resolving reasonable doubt in the Veteran’s favor, the Board finds that service connection for tinnitus is warranted. The Board notes that the 2016 examiner opined that the claimed condition was less likely than not (less than 50 percent probability) caused by or a result of military noise exposure. The Board also notes that the 2017 examiner was unable to opine whether the Veteran’s tinnitus was caused by or a result of military noise exposure without resorting to speculation. Nonetheless, the Board emphasizes that tinnitus is a subjective symptom that is unable to be verified with objective findings. Here, the Veteran is considered competent to report the observable manifestations of his claimed disability. See Charles v. Principi, 16 Vet. App. 465, 469-70 (1994) (lay testimony iterating knowledge and personal observations of witness are competent to prove that claimant exhibited certain symptoms at particular time following service). The Board finds the Veteran’s statements of ringing in his ears dating since service to be credible. Additionally, the 2016 VA examiner indicated that the Veteran’s tinnitus can be a precursor to the Veteran’s now service-connected bilateral hearing loss, and the 2017 examiner stated that excessive noise exposure is known to cause tinnitus. Therefore, resolving reasonable doubt in the Veteran’s favor, the Board finds that the criteria for service connection for tinnitus have been met. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Michael Lane Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Henry, Associate Counsel