Citation Nr: 21001537 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 19-00 790 DATE: January 8, 2021 ORDER Service connection for tinnitus is granted. FINDING OF FACT The Veteran’s tinnitus is proximately due to his service-connected bilateral hearing loss. CONCLUSION OF LAW The criteria for service connection for tinnitus as secondary to service-connected bilateral hearing loss are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty in the United States Air Force from June 1961 to June 1965 and from September 1965 to September 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, the Board remanded this matter for further development. In July 2019, the Board issued a decision denying service connection for tinnitus. In a July 2020 Order, the United States Court of Appeals for Veterans Claims (Court) endorsed a joint motion for remand (JMR), vacated the Board’s July 2019 decision, and remanded the case for further action consistent with the terms of the joint motion. As noted above, this matter was returned to the Board pursuant to a July 2020 JMR. “A joint motion for remand, when drafted properly, identifies … clear instructions to the Board as to what it is required to address, and what actions it is required to take, on remand. This increases both administrative and judicial efficiency.” Carter v. Shinseki, 26 Vet. App. 534, 541 (2014), vacated on other grounds sub nom. Carter v. McDonald, 794 F.3d 1342 (Fed. Cir. 2015). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for a 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be granted for a disability that is proximately due to or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. The Board notes that the Veteran is currently service-connected for bilateral hearing loss. There is conflicting evidence as to whether the Veteran has a present disability of tinnitus at any point during the appeal. In a November 2016 statement, the Veteran stated that he has some hearing problems. The Veteran underwent a VA examination in June 2017 where it was found that he had a diagnosis of tinnitus. However, the Veteran submitted an August 2017 signed letter stating he has never had tinnitus and told the examiner that. He stated he can hear good enough, but does admit that the examiner told him he has tinnitus. In a January 2018 statement, the Veteran’s representative states that the Veteran was exposed to significant noise in service that has caused ringing in his ears. After remand, the Veteran underwent another VA examination in March 2019. At this examination, the examiner found the Veteran not to have tinnitus due to the Veteran denying having any tinnitus. In a May 2019, an addendum was sought for the examiner to clarify the finding of no diagnosis of tinnitus despite the Veteran being diagnosed with tinnitus in June 2017. The examiner opined that it was less likely than not that the Veteran had tinnitus, referring to the Veteran’s statements during the June 2017 examination where the Veteran is unable to recall the onset of his tinnitus, the Veteran’s statements during the March 2019 examination that he didn’t have tinnitus, and his August 2017 letter where the Veteran stated he never had tinnitus. The Board finds the evidence to be in relative equipoise as to whether the Veteran had a diagnosis of tinnitus during the appeal period. When the evidence is in equipoise, the Veteran prevails. Accordingly, the Board finds that the Veteran had a diagnosis of tinnitus during the appeal period. Throughout the appeal period the Veteran has undergone two VA examinations. At his first examination in June 2017, the examiner found that it was as likely as not that the Veteran’s tinnitus is a symptom associated with his hearing loss. The examiner is competent to provide this opinion, the Board finds it to be credible, and affords it great probative weight. After remand, the Veteran underwent another VA examination in March 2019. This VA examiner made no etiological finding for the Veteran tinnitus due to finding that the Veteran had no diagnosis of tinnitus. The Board has found that the Veteran had a diagnosis of tinnitus during the pendency of his appeal. The Board finds this examination to be inadequate and affords it no probative weight. (Continued on the next page) The Board finds the evidence to support that the Veteran’s tinnitus is due to his service-connected hearing loss. Accordingly, service connection for tinnitus is granted. 38 C.F.R. § 3.310. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Chandeck, 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.