Citation Nr: 20005352 Decision Date: 01/22/20 Archive Date: 01/22/20 DOCKET NO. 17-35 310 DATE: January 22, 2020 ORDER The claim of entitlement to service connection for tinnitus is granted. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, his tinnitus was incurred in active duty service. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service from September 2007 to January 2008 with the United States (U.S.) Army National Guard. Additionally, he was ordered to active duty with the U.S. Army in support of Operation Enduring Freedom from May 2011 to May 2012. This matter comes before the Board of Veterans’ Appeals (Board) from a December 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran’s lay statements of record have raised a duty to assist argument; namely, that his VA examination was not adequate for rating purposes. When VA undertakes to provide an examination, it must provide an adequate one; however, because the Board is granting the Veteran’s claim on a presumptive basis, the Veteran is not prejudiced by any inadequacy of the VA examination, nor is he prejudiced by the Board issuing a decision on his claim based on the current evidence of record. 1. The claim of entitlement to service connection for tinnitus. The Veteran contends that he is entitled to service connection for tinnitus due to noise exposure he experienced during active service. Specifically, he contends that as a combat engineer he was exposed to hazardous noise, which caused his tinnitus. Generally, service connection will be granted for a disability or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish service connection there must be competent evidence showing: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (or “nexus”) between the present disability and the in-service injury incurred or aggravated during service. 38 U.S.C. § 1110; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. § 3.303(a). Certain chronic diseases, including tinnitus, may be presumed to have been incurred in or aggravated by service if manifested to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. To show chronicity there is a requirement of a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” 38 C.F.R. § 3.303(b). In these types of cases the disease is presumed under the law to have had its onset during service even though there is no evidence of that disease during service. 38 C.F.R. § 3.307(a). This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307(d), 3.309(a). Pursuant to 38 C.F.R. § 3.309(a) if a disease is not shown to be chronic during service or the one-year presumptive period, then service connection may also be established by showing a continuity of symptomatology after service. 38 C.F.R. § 3.303(b). Continuity of symptomatology may be established by demonstrating: (1) that a condition is shown in service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Id. Because tinnitus is recognized by VA as a “chronic disease” under 38 C.F.R. § 3.309(a), the presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 apply here. Walker, 708 F.3d at 1336; Fountain v. McDonald, 27 Vet. App. 258 (2015). Further, the Secretary shall consider all information and lay and medical evidence of record in a case and make appropriate determinations as to competence, credibility, and weight. 38 U.S.C. § 5107; Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); 38 C.F.R. § 3.303. VA must consider all favorable lay evidence of record. 38 U.S.C. § 5107. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. See Barr v. Nicholson, 21. Vet. App. 303 (2007). Generally, when there is a balance of positive and negative evidence regarding a material issue the Veteran is to be given the benefit of the doubt. 38 C.F.R. § 5107. However, to deny a claim on its merits there must be a preponderance of evidence against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the Board notes at the outset that the first two elements of service connection have been met. First, the Veteran has a current diagnosis of tinnitus. See October 2016 VA examination. Second, an in-service injury or event has been conceded. In its January 2017 deferred rating decision, the RO conceded that the Veteran’s Military Occupational Specialty (MOS) of combat engineer has a high probability of noise exposure. As for the nexus element, the Veteran’s service treatment records (STRs) contain no reference to or diagnosis of tinnitus during active service or upon separation from active service. Post-service treatment records do not contain evidence that the Veteran was diagnosed with tinnitus within a year of his separation from active duty. Further, upon VA examination of the Veteran’s tinnitus, the VA examiner opined that it was less likely than not that his tinnitus was caused by or a result of military noise exposure, although the examiner dated the onset of the Veteran’s tinnitus to February or March 2012 at the end of his deployment. Included in the evidence of record, however, are numerous lay statements made by the Veteran regarding the onset of his claimed tinnitus condition. According to the Veteran’s January 2017 Notice of Disagreement (NOD), he asserts that his tinnitus began during basic training “after a live simulation of mortars, mines, trip wire explosives, and loud firearms.” He asserts that his tinnitus continued while he was deployed in 2011-2012 during live fire exercises. The Veteran believes he did not have the proper ear protection provided to him. He also asserts that he was never seen for his tinnitus symptoms during his service because he “never thought it would be a problem that would affect [him] for the rest of [his] life.” Having fully considered the evidence of record, the Board finds the VA examiner’s etiology opinion entitled to significantly reduced probative value. Specifically, the examiner based her negative nexus opinion on the rationale that there was “[n]o evidence of noise injury during military service.” Following the VA examination, the RO informed the examiner that in-service noise exposure had been conceded and inquired whether that information would alter her conclusion, however the examiner did not revise or elaborate on her medical opinion. See October 2016 VA examination report; January 2017 deferred rating decision; February 2017 Statement of the Case. While the conclusions of a physician are medical conclusions that the Board cannot ignore or disregard, see Willis v. Derwinski, 1 Vet. App. 66 (1991), the Board is free to assess medical evidence and is not compelled to accept a physician’s opinion. See Wilson v. Derwinski, 2 Vet. App. 614 (1992). A medical opinion based upon an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Here, the examiner’s conclusion that the Veteran’s tinnitus was unrelated to service was based on the inaccurate premise that there was no evidence of military noise exposure. Even when provided the correct evidence and asked to review her opinion, the examiner made no change in her conclusion. As such, the VA examiner’s etiology opinion is not probative. Importantly, evidence of tinnitus symptoms is highly subjective. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that a layperson is capable of observing tinnitus). As such, determinations regarding diagnosis and etiology of tinnitus are heavily reliant upon lay statements. Here, the Board finds the Veteran to be a competent and credible historian and, as such, assigns significant probative weight to his lay statements of record. The Veteran is competent to report, as he has here, that he experienced subjectively observable symptoms of ringing in his ears, and that experienced recurrent symptoms during active duty. The Board finds the Veteran’s rationale for not seeking treatment for tinnitus to be sincere, based on his mistaken belief that the condition would not impact him long term. The Board has resolved reasonable doubt in the Veteran’s favor and finds that he had continuous symptoms of tinnitus since his active duty service, and that his claim meets the requirements of presumptive service connection under 38 C.F.R. § 3.303(b). Given the Veteran’s current tinnitus diagnosis, his in-service noise exposure, and the evidence of tinnitus symptoms during and since active service, the Veteran’s, tinnitus is presumed to have been incurred in service. Accordingly, the Veteran’s claim of service connection for tinnitus is granted. Because the Board is granting service connection on a presumptive basis, all other service connection theories are rendered moot. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Hart, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.