Citation Nr: 20022456 Decision Date: 03/31/20 Archive Date: 03/31/20 DOCKET NO. 14-15 554 DATE: March 31, 2020 ORDER Entitlement to service connection for tinnitus is granted. FINDING OF FACT The evidence is in equipoise as to whether the Veteran’s tinnitus had its inception during his active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1966 to November 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which, inter alia, denied service connection for tinnitus. The Board notes that the Veteran was scheduled for a videoconference hearing in January 2020. In a December 2019 correspondence, the Veteran withdrew the request for a Board hearing. Accordingly, the Board deems the hearing request withdrawn. 38 C.F.R. § 20.704(e). Entitlement to service connection for tinnitus is granted. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, “[t]o establish a right to compensation for a present disability, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service”—the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases, including tinnitus, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a) (3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). To establish service connection under this provision, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that he developed tinnitus as a result of noise exposure during active duty service. See April 2009 Statement in Support of Claim; April 2010 Notice of Disagreement (NOD); March 2014 correspondence, received April 2014. Service treatment records (STRs) are negative for complaints of tinnitus. In support of his claim, the Veteran has submitted several lay statements to the effect that he was exposed to heavy artillery fire during active duty service due to his MOS as night surveillance in an artillery unit. He asserts that after firing missions, he experienced ringing in his ears that would last for several hours to several days. He also asserts that he did not report tinnitus at his separation examination because his tinnitus was intermittent and he was not experiencing ringing in his ears at the time of the examination, and he “just wanted to bury the past year out of his life.” He further contends that his tinnitus has persisted continuously, and worsened, since active duty service. See April 2009 Statement in Support of Claim; April 2010 NOD; March 2014 correspondence, received April 2014. The Veteran was afforded a VA audiological examination for hearing loss and tinnitus in November 2009. The audiologist noted that the Veteran reported constant bilateral tinnitus, which he first noticed “at least 25 years ago.” The audiologist offered a negative etiological opinion regarding the Veteran’s tinnitus. The audiologist opined, The veteran’s service medical records were reviewed. The veteran indicated normal hearing bilaterally upon enlistment into the military (11-10-1965) and normal hearing bilaterally upon separation from the military (11-19-1967). The veteran was tested again on 9-30-1971 (4 years post military separation) and indicated normal hearing bilaterally through all ratable frequencies. He denied hearing loss on his 1967 and 1971 questionnaire. There are no complaints of hearing loss or tinnitus in the veteran’s records. Therefore, due to the absence of acoustic damage it is my opinion that it is not as least as likely as not that the veteran’s hearing loss and tinnitus are related to his military service. In March 2010 correspondence, the Veteran’s former spouse, J.W., indicated that the Veteran complained about tinnitus several times during the course of their marriage. She asserted that she did not remember the exact date of his first complaint, but she believed it was in either 1971, 1972, or 1973. See March 2010 correspondence from J.W., received April 2010. In a February 2012 medical opinion, a private physician, Dr. D.M., indicated a diagnosis of bilateral tinnitus. The physician noted the Veteran’s reports of exposure to heavy artillery fire during active duty. The physician opined in pertinent part, Due to these findings and due to the fact that the patient faithfully wore hearing protection during his civilian employment I think it is very safe to assume that at least part of his hearing loss currently is due to noise damage which he acquired in the service. This particularly seems logical because he was exposed to heavy artillery, which is a known cause of hearing loss and he experienced obvious symptoms during the service of tinnitus, which began in the service and never ended. See February 2012 medical opinion from Dr. D.M., received March 2012. The Veteran was afforded a VA audiological examination for hearing loss and tinnitus in July 2013. The audiologist noted that the Veteran reported constant bilateral tinnitus with an onset in the late 1960s or early 1970s. The Veteran reported that he was “used to it.” The audiologist offered a negative etiological opinion regarding the Veteran’s tinnitus. The audiologist opined in pertinent part, Regarding tinnitus, review of the c-file revealed veteran denied ear, nose and throat trouble at entrance on 11/10/65 and at exit on 11/19/67. There were no reports of tinnitus within the veteran’s SMRs. Today he reported his tinnitus began in the late 1960’s or early 1970’s, however at his 11/19/09 examination he reported it had begun 25 years prior which corresponds to 1984. When conflicting reports are present, one must assume the initial report is the most accurate. Therefore, it is my opinion that it is less likely than not that the veteran’s tinnitus was caused by or a result of military service. In support of his claim, the Veteran has also submitted medical literature indicating that tinnitus rates are significantly higher for individuals with longer exposure to occupational noise or exposure to higher levels of occupational noise. Additionally, the research shows that exposure to impulse noise may also increase the risk of developing tinnitus. Furthermore, the literature suggests that the prevalence of tinnitus is consistently higher in individuals with some degree of hearing loss than in those with normal hearing. See medical literature received February 2020. After a review of the evidence, the Board finds that service connection is warranted for tinnitus. With regard to the first element of a service connection claim, the evidence shows a current diagnosis of tinnitus. The Veteran was diagnosed with tinnitus in the November 2009 VA examination and February 2012 private medical opinion, as well as in the July 2013 VA examination. Moreover, when a condition may be diagnosed by its unique and readily identifiable features, as is the case with tinnitus, the presence of the disorder is not a determination medical in nature, and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 305 (2007). Thus, the Veteran’s reports of tinnitus are sufficient to establish the presence of a current disability. As set forth above, the second element for service connection is evidence of an in-service disease or injury. With respect to an in-service injury, the Board finds that the record does contain evidence of in-service noise exposure. The Veteran has reported that he was exposed to noise from heavy artillery fire during active duty. Additionally, the Veteran’s personnel records indicate that his MOS was field illumination crewman of an artillery unit, a position generally consistent with noise exposure. Thus, the Board finds that the record is sufficient to establish an in-service injury in the form of noise exposure. With respect to an in-service disease, the Board finds that the evidence is in equipoise. Again, tinnitus is an inherently subjective disability and is therefore readily capable of lay diagnosis. See Charles v. Principi, 16 Vet. App. 370 (2014). Thus, the Veteran is competent to report when he began experiencing tinnitus and the history of his symptoms. Where, as here, a claim involves a diagnosis based on purely subjective complaints, the Board is within its province to weigh the Veteran’s lay statements and determine whether they support a finding of service incurrence. Id. If they do, such lay evidence is sufficient to establish service connection. Id. In this case, the Veteran reported to the November 2009 VA audiologist that he first noticed tinnitus “at least 25 years ago;” however, he reported to the July 2013 VA audiologist that his tinnitus had its onset in the late 1960s or early 1970s. In multiple lay statements, the Veteran clarified that his tinnitus began intermittently during active duty and had gotten worse since that time. The contemporaneous clinical evidence contains no affirmative evidence that tinnitus was not present during active duty. Thus, resolving reasonable doubt in the Veteran’s favor, the Board finds that the record is sufficient to establish an in-service disease, tinnitus. With respect to the third element, a nexus between the current disability and the in-service disease or injury, the Board notes that in November 2009 and July 2013, VA audiologists reviewed the record and concluded that the Veteran’s current tinnitus was not related to in-service noise exposure. However, in February 2012, a private physician, Dr. D.M., reviewed the Veteran’s record and concluded that the Veteran’s current hearing loss and tinnitus were related to in-service noise exposure. Although the record contains both positive and negative opinions regarding whether the Veteran’s current tinnitus is related to an in-service injury, as set forth above, the law provides an alternate avenue for establishing service connection for certain chronic diseases, including an organic disease of the nervous system such as tinnitus. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a) (3), 3.309(a). Here, as set forth above, the record is sufficient to establish the onset of a chronic disease in service, tinnitus. Moreover, the Board notes that in multiple lay statements, the Veteran clarified that his tinnitus developed during active duty and has persisted on a continuous basis since that time. The Board finds his statements regarding the onset of his tinnitus to be both competent and credible. The law provides that when a chronic disease is 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. See 38 C.F.R. § 3.303(b). Absent evidence of an intercurrent cause, and resolving all reasonable doubt in the Veteran’s favor, the Board finds that the competent and credible evidence establishes that the Veteran’s tinnitus had its inception during active service and has existed since that time. Therefore, service connection for tinnitus is warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Ruddy, 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.