Citation Nr: 18161134 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 15-31 101A DATE: December 28, 2018 ORDER Service connection for tinnitus is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran’s tinnitus is related to in-service noise exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1966 to February 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2011 rating decision by a Department of Veteran Affairs (VA) Regional Office (RO). A hearing was held in September 2017 by means of video conferencing equipment with the Veteran in West Palm Beach, Florida before the undersigned Veterans Law Judge, sitting in Washington, DC, who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file and the uncertainty as to which claims are before the Board is explained below. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection requires competent evidence showing: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or “medical nexus” between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Whereas, chronic diseases or injuries found under 38 C.F.R. § 3.309 are presumptively granted service connection by establishing: (1) the chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date, however remote, unless clearly attributable to an intercurrent cause; or (2) there has been continuity of symptomatology since service; or (3) the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service or within three years for leprosy and tuberculosis or seven years for multiple sclerosis. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; see also 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Establishing a disease as chronic eliminates the medical nexus evidence requirement for that disability. See Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Organic diseases of the nervous system, including sensorineural hearing loss and tinnitus, are considered by VA to be chronic diseases listed under 38 C.F.R. § 3.309(a). Fountain v. McDonald, 27 Vet. App. 258 (2015); see also Walker, 708 F.3d at 1338. Notably, medical evidence is not always or categorically required in every instance to establish a medical diagnosis or the required nexus between the claimed disability and the Veteran’s military service. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). That is, 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 at 1316; see also 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 the issues of diagnosis and causation are supported by the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); see also Jandreau, 492 F.3d 1372. Once a lay person is deemed competent to make such statements, the Board must determine if their statements are credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Credible testimony is that which is plausible or capable of being believed. Caluza v. Brown, 7 Vet. App. 498 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996) (per curiam); Black’s Law Dictionary 396 (8th ed. 2004). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Entitlement to Service Connection for Tinnitus. The Veteran seeks service connection for tinnitus, which he contends initially manifested in service immediately following loud combat noise exposure in Vietnam. More specifically, he described the Howitzers being directly behind him and exerting vibration magnitudes that consistently shook him. He contends this loud exposure immediately resulted in his ears ringing, which he now knows is tinnitus. Here, the November 2011 and November 2014 VA examination reports reflect that the Veteran experiences tinnitus. Hence, current tinnitus has been demonstrated. The Veteran asserts that his tinnitus is related to his active service. As noted above, he indicates that it was incurred in service as a result of exposure to loud noises. In this regard, there is no medical evidence of tinnitus in the service treatment records or for many years thereafter. However, the Veteran is competent to testify to in-service acoustic trauma and his symptoms of tinnitus through the years “because ringing in the ears is capable of lay observation.” Charles v. Principi, 16 Vet. App 370, 374-75 (2002); see generally Barr, 21 Vet. App. 303. Thus, the Board notes that the Veteran is competent to describe both the loud acoustic trauma he experienced in Vietnam and his symptoms associated with the exposure, which he described as occurring immediately, continuing daily, and increasing in severity. Thus, the Veteran has satisfied the in-service injury element of his claim. The remaining issue is thus whether the current tinnitus is related to the acoustic trauma. The Board observes that there is a presumption of service connection for a chronic disease such as tinnitus, rebuttable only by clearly attributable intercurrent causes, which manifests during service and then again “at any later date, however remote.” See Groves v. Peake, 524 F.3d 1306, 1309 (2008). Here, the Veteran currently manifests tinnitus. Thus, pursuant to Groves, the Board finds that the criteria for entitlement to service connection for tinnitus have been met as there is no clear intercurrent cause of tinnitus shown by the record. The Board notes that the Veteran underwent two VA examinations, one in November 2011 and the other in November 2014. However, the Board finds that these examination reports are inadequate. The two VA examiners both indicated that the etiology could not be opined without speculation because the Veteran did not have a diagnosis of hearing loss severity and configuration. Neither examiners addressed the Veteran’s disability on a direct basis to service. The Board finds that the evidence is thus at least evenly balanced as to whether the Veteran’s current tinnitus is related to service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for tinnitus is warranted. See 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. L. CHU Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Vaughn, Associate Counsel