Citation Nr: 18160158 Decision Date: 12/26/18 Archive Date: 12/26/18 DOCKET NO. 15-29 340 DATE: December 26, 2018 ORDER The claim of entitlement to service connection for tinnitus is granted. FINDING OF FACT The Veteran’s tinnitus was incurred in active duty service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service with the United States Navy from August 1969 to August 1973. In December 2018, the Veteran testified before the undersigned in a videoconference hearing. This decision was expedited prior to associating a copy of the testimony with the claims file. 1. The claim of entitlement to service connection for tinnitus Generally, service connection will be granted for a disability resulting from an injury or disease caused or aggravated by service. 38 U.S.C. § 1110 (2012). A grant of service connection for a disability requires: (1) a present disability or persistent or recurrent symptoms of a disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (“nexus”) between the present disability and the in-service event, injury, or disease. 38 C.F.R. § 3.303 (2017); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Moreover, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and hearing loss or tinnitus becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Tinnitus is a chronic disease under 38 C.F.R. § 3.309 (a); therefore, the presumptive service connection provisions of 38 C.F.R. § 3.303 (b) based on “chronic” symptoms in service and “continuous” symptoms since service are applicable to this service connection claim. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. For the showing of a chronic disease in service, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303 (b). In September 2012, the Veteran underwent a VA examination to determine the etiology of his tinnitus. He reported a constant ringing in his ears that lasted at least 3 years “or probably longer.” He worked around jets and on the flight deck of an aircraft carrier. He reported sleeping near the catapults under the flight deck. The examiner concluded, however, that, due to a lack of a threshold shift in his audiology examination at discharge, his tinnitus was less likely than not due to active duty service. In his December 2018 hearing, the Veteran reported that he experienced noise disturbances in his ears, described as cricket sounds, in approximately 1973 while he was on active duty. The sounds continued after his discharge to the present day. The evidence of record reflects that the Veteran’s tinnitus began during active duty service, and continued after discharge. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). If a veteran reports ringing in his or her ears, then a diagnosis of tinnitus is generally applied without further examination. In addition, since the diagnosis of tinnitus is so heavily reliant upon lay statements, the etiology of the disorder is similarly reliant upon them. The date that a veteran reports that the tinnitus symptoms began is generally accepted as the date that the disorder began, without further examination. Thus, while service connection for tinnitus requires a medical diagnosis of tinnitus and a competent nexus relating the diagnosis to military service, lay testimony plays an unusually important role in these determinations. The Board concludes that the Veteran’s tinnitus was incurred in active duty service. It has been conceded that he was exposed to noise in service. The Veteran has consistently reported noise disturbances in his ears that began during active duty. The Veteran is competent to testify as to onset of a condition such as tinnitus, and did so repeatedly throughout the record. As such, the Board may place more probative weight on the Veteran’s statement regarding onset than the opinion of the VA examiner who relied primarily on the absence of an in-service threshold shift. As the evidence of record stands in relative equipoise, the benefit of the doubt is resolved in favor of the Veteran. Service connection for tinnitus is warranted. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Fisher, Associate Counsel