Citation Nr: 20022441 Decision Date: 03/31/20 Archive Date: 03/31/20 DOCKET NO. 18-43 379 DATE: March 31, 2020 ORDER Entitlement to service connection for tinnitus is granted. FINDING OF FACT The Veteran's tinnitus is at least as likely as not related to in-service acoustic trauma. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, tinnitus was incurred in service. 38 U.S.C. §§ 1110, 1154(a), 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from October 1979 to February 2000. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2018 rating decision from the Department of Veterans Affairs, Regional Office (RO). In that decision, the RO, among other things, denied service connection for tinnitus. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in-service. 38 C.F.R. § 3.303(d). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected; if a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, such chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). Tinnitus is a chronic disease. Fountain v. McDonald, 27 Vet. App. 258 (2015) (including tinnitus within the category of organic diseases of the nervous system for which presumptive service connection is provided under 38 C.F.R. § 3.309(a)). 1. Tinnitus The Veteran contends that his tinnitus was due to his in-service exposure to acoustic trauma. A February 2017 VA treatment record documents the Veteran's complaints of ringing in the ears in service. On the Veteran’s March 2018 Notice of Disagreement (NOD) and August 2018 substantive appeal (Form 9) the Veteran stated he suffers from ringing in his ears and that this symptom has persisted continuously since his time in service. Tinnitus is capable of lay observation, and the Veteran has offered competent, credible statements that he experiences tinnitus. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"). Thus, a current disability has been demonstrated. As to the in-service injury element, there is no reason to dispute the Veteran's credible lay statement concerning his in-service noise exposure. The Veteran's Military Occupational Specialty (MOS) in the Navy was a Shipboard Hydraulic Mechanic, as noted on his DD Form 214. Because this MOS is associated with exposure to loud noises, the Veteran’s claimed tinnitus, as expressed on his August 2018 VA Form 9, is consistent with the places, types, and circumstances of service, and is credible. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). Thus, the Veteran meets the first and second elements of his service connection claim for tinnitus. The remaining question is whether a nexus exists between the Veteran’s current tinnitus and his in-service acoustic trauma. The audiologist who conducted the October 2017 VA audiological examination concluded that the etiology of the Veteran's tinnitus could not be provided without resorting to speculation. This opinion to be inadequate because it did not consider the competent, credible lay statements of the Veteran that he had tinnitus in and since service. Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"). On the Veteran’s August 2018 VA Form 9 he stated that he suffers from a ringing in his ears and these symptoms have been continuous since his time in service. No portion of the medical examiner’s opinion addresses these statements. Because the examiner did not address the Veteran's statement that his tinnitus began in-service and has persisted since his time in the Navy, there is no probative value assigned to the October 2017 VA examination report as there was no opinion provided. Moreover, the examiner indicated that he could not offer an opinion without resort to speculation and such an opinion does not constitute evidence against or in support of the claim. See Fagan v. Shinseki, 573 F. 3d 1282, 1289 (Fed. Cir. 2009) (a medical "examiner's statement, which recites the inability to come to an opinion, provides neither positive nor negative support for service connection" for purposes of the benefit of the doubt rule). Furthermore, pursuant to 38 C.F.R. § 3.303(b), tinnitus is a chronic disease and entitlement to service connection based on chronicity or continuity of symptomatology applies when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran’s August 2018 VA Form 9 indicates a continuity of symptomatology for tinnitus dating back to his time in service. This lay evidence of a chronic disease in and since service supports the claim. (Continued on the next page)   For the foregoing reasons, that there is an inadequate, speculative medical nexus opinion and competent, credible lay evidence of current tinnitus that had its onset in service. The evidence is therefore at least evenly balanced as to whether the Veteran's tinnitus had its onset to or is related to his in-service noise exposure. 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. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Buchanan, 451 F.3d at 1335 ("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself"). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Miller, 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.