Citation Nr: 20046901 Decision Date: 07/14/20 Archive Date: 07/14/20 DOCKET NO. 16-28 182 DATE: July 14, 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, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1969 to March 1972. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision from the Department of Veterans Affairs, Regional Office (RO). In that decision, the RO, among other things, denied service connection for tinnitus. In March 2015 the Veteran filed a notice of disagreement (NOD) as to only his tinnitus and in April 2016 the RO issued a statement of the case (SOC). In June 2016 the Veteran timely filed a substantive appeal (via VA Form 9). 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)). Tinnitus A June 2014 private treatment note indicates that the Veteran experienced constant ringing in his ears for 5-6 years. In an October 2014 letter the Veteran stated he was diagnosed with tinnitus 15 or more years prior. In October 2014 the Veteran submitted a Statement in Support of Claim (VA Form 21-4138) and reiterated that he was diagnosed with tinnitus 15-20 years prior and reported that the ringing sensation in his ears became progressively worse over time. As a result of the Veteran’s tinnitus he requires hearing aids to understand speech and conversations. The Veteran does not believe his tinnitus is hereditary as his father and mother never had hearing problems. On the Veteran’s March 2015 NOD the Veteran stated that he became aware of his tinnitus over 20 years ago and it has worsened over time. Taken together, the Veteran’s lay statements indicate that the Veteran first sought treatment for his tinnitus approximately 15 to 20 years prior to his claim for service connection after noticing a worsening of his hearing loss and tinnitus symptoms, but that the condition may have existed prior to that date in a less obtrusive form. As tinnitus is capable of lay observation a current disability has been demonstrated. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (“ringing in the ears is capable of lay observation”). On the October 2014 VA Form 21-4138 the Veteran reported that he was assigned to the 525th military intelligence group and was exposed to loud noises from gunfire and rockets/artillery. Also, the Veteran stated that his weekly duties included making daily courier runs on the flight line which exposed him to aircraft noise. On the June 2016 VA Form 9 the Veteran contended that his claim should not have been denied because, even though his MOS is not inherently associated with acoustic trauma, he was exposed to aircraft noise as a result of his normal duties and was not provided hearing protection. The Veteran’s Military Occupational Specialty (MOS) in the Army was an area intelligence specialist, as noted on his DD Form 214. The certificate citation for the Veteran’s Army Commendation Medal verified that the Veteran was a courier and served in Vietnam with the 525th military intelligence group. As there is nothing in the Veteran’s record to doubt his contention that he was exposed to loud noises while fulfilling his MOS duties, the Veteran’s claimed tinnitus is consistent with the places, types, and circumstances of service, and is competent and 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 February 2015 VA examiner opined that the Veteran’s tinnitus was less likely than not caused by military noise exposure and was not a symptom of the Veteran’s hearing loss, noting that the Veteran’s service treatment records did not document complaints of tinnitus, that the Veteran denied any ear trouble on his separation questionnaire, and that the Veteran stated he only noticed his tinnitus for the past 10 to 15 years. However, the February 2015 VA examiner did not address the appellant's competent lay statements indicating that he experienced ongoing tinnitus since service. Therefore, the February 2015 opinion was inadequate. 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”). An October 2019 VA examiner opined that the Veteran's tinnitus was less likely than not caused by or a result of military noise exposure. The October 2019 VA examiner explained that there were not any complaints of tinnitus in the Veteran’s military file, that he denied ear trouble and hearing loss at the time of his separation, and that the Veteran stated that he first noticed tinnitus within the past twenty years, years after service. Although the October 2019 VA examiner rendered the opinion that the Veteran's current tinnitus was not related to service, such an opinion is of little probative value, as it was based on the absence of in-service medical or documentary evidence of tinnitus. See Jandreau v. Nicholson, 492 F.3d at 1377; 38 C.F.R. § 3.303(d) (service connection is warranted in some circumstances for a disease first diagnosed after service). Additionally, the October 2019 VA examiner did not address the Veteran’s lay statements. Moreover, the denial of ear trouble does not necessarily relate to tinnitus, which as noted is an organic disease of the nervous system. The opinion is therefore entitled to little, if any, probative weight. For the foregoing reasons, there are two inadequate medical nexus opinions 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 in 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.