Citation Nr: 21001321 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 18-53 776 DATE: January 7, 2021 ORDER Entitlement to service connection for tinnitus is granted. FINDING OF FACT Resolving reasonable doubt in his favor, the Veteran has tinnitus that is attributable to his active military service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1131; 38 C.F.R. § 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1951 to April 1954. This case comes before the Board of Veterans’ Appeals (Board) on appeal of an August 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was afforded a videoconference hearing in November 2020 and the transcript is associated with the record. Moreover, the Veteran’s motion to advance his case on the docket due to his age was granted. 1. Entitlement to service connection for tinnitus Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be established directly for any disease diagnosed after separation from service if the disease incurred during service. 38 C.F.R. § 3.303(d). Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including evidence pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Continuity of symptomatology may also provide a basis for a grant of service connection for diseases defined as “chronic” by VA, including tinnitus. 38 C.F.R. § 3.303(b), 3.307(a)(3), 3.309(a); Fountain v. McDonald, 27 Vet. App. 258 (2015). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that his tinnitus began in service due to his military occupational specialty (MOS). He was a gunner while in the Navy and was constantly exposed to noise from the firing of 20 mm, 40 mm, and 240mm cannons. The Veteran also was exposed to military acoustic trauma when he was present for the firing of a hydrogen bomb in the Marshall Islands. He reports that he has experienced ringing in his ears during service and that he has continuously experienced it since service. While the Veteran’s service treatment records (STRs) do not indicate any hearing problems, his personnel records do indicate that the Veteran was present at the hydrogen bomb testing in the Marshall Islands under Operation Ivy in the fall of 1952. The Board finds the Veteran’s accounts credible and finds that his military personnel records demonstrate that the Veteran had military noise exposure. The Veteran was afforded a VA examination for his tinnitus in July 2018 where he was diagnosed with tinnitus. The examiner reported that the Veteran claimed that the onset of his tinnitus was about 10 to 15 years ago and that the onset was not associated with any specific event. The examiner opined that it was less likely than not that the Veteran’s tinnitus was caused by or a result of military noise exposure since the Veteran reported onset of tinnitus about 10 to 15 years ago and that the onset was not associated with any specific event. The examiner further explained that the Veteran’s file is silent regarding tinnitus and that because tinnitus is a subjective complaint and that there is no objective measure to verity the presence or absence of tinnitus, etiology is typically inferred by the patient history and a review of medical records. The examiner explained that a review of the Veteran’s file and service medical records revealed no record of complaint or treatment for tinnitus and that according to the Veteran’s report of onset of tinnitus, he first sought treatment for it about 50 years after discharge from service. At the November 2020 Board hearing, the Veteran explained the misunderstanding regarding the July 2018 VA examination. The Veteran reported that he first experienced tinnitus during service after he was exposed to the constant sounds from the 30 mm and 40 mm cannons. He reported that he never went to sick bay and had earaches for days. He then explained that he experienced ringing in his ears since service and that he meant that his tinnitus became progressively worse about 10 to 15 years ago. He clarified that he did not mean to say that the onset of his tinnitus was 10 to 15 years ago. The Board notes that ringing in the ears are the types of symptoms that are readily amenable to lay observation as they are subjective to the claimant; thus, the Veteran is competent to report his symptoms and their frequency. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Evidence of the record notes that the Veteran’s continued reports detailing his tinnitus and his contention that he was exposed to hazardous noise in service. Nothing in the record contradicts his statements except for the July 2018 VA opinion. His statements are consistent with the circumstances of his service. Thus, the Board finds the Veteran’s statements are credible and probative. (Continued on the next page)   Upon consideration of the above evidence, the Board finds that, resolving reasonable doubt in the Veteran’s favor, a grant of service connection for tinnitus is warranted. The evidence shows a current diagnosis of tinnitus, which the Veteran has reported began during service and has continued from that time to the present. With regard to the Veteran’s complaints of in-service noise exposure, the Board finds credible his account of noise exposure in service as it is consistent with his military personnel records. Additionally, while the July 2018 VA medical opinion opines that it is less likely that the Veteran’s tinnitus had its onset in service, it was largely based off of the misunderstanding that the Veteran’s tinnitus had its onset 10 to 15 years ago and not that his tinnitus became progressively worse 10 to 15 years ago. Due to the Veteran’s clarification during the November 2020 Board hearing, the Board finds that July 2018 opinion has very little probative weight and did not give due consideration to the Veteran’s credible account of the onset of symptoms in service and their continuity thereafter, or to his credible and corroborated report of noise exposure in service. Based upon the Veteran’s noise exposure in service and reports of continuous symptoms since service, the Board finds tinnitus are a result of military service. With resolution of reasonable doubt in the Veteran’s favor, service connection for tinnitus is warranted. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Imam, 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.