Citation Nr: 21003695 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 16-13 424 DATE: January 22, 2021 ORDER Entitlement to service connection for tinnitus is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran’s tinnitus is related to in-service noise exposure. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1964 to May 1966, with additional service in the Naval Reserve. This case comes to the Board from a May 2014 decision of the Agency of Original Jurisdiction (AOJ), which denied claims for service-connected compensation for hearing loss and tinnitus. The Board remanded both claims for further development in November 2019. After obtained new opinions from an audiologist, the AOJ granted the hearing loss claim in July 2020, but continued to deny the tinnitus claim. Thus, the claim for service connection for tinnitus is the only issue remaining in this appeal. In July 2019, the Veteran testified before the undersigned at a videoconference hearing. A transcript of that hearing is of record. The Board has received a letter from the Veteran’s representative, dated January 2021, requesting a second hearing. Because today’s decision grants the Veteran’s claim, the Board finds that the second hearing request is moot. Analysis Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and an in-service precipitating disease, injury or event. See Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Acoustic trauma due to exposure to loud noise may satisfy the in-service disease or injury element of claims for disability compensation. See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012) (sound of mortars firing); Hensley v. Brown, 5 Vet. App. 155, 160 (1993) (jet aircraft noise). In a March 2016 statement, the Veteran described exposure to the loud noises of firearms during rifle training at boot camp. He also wrote that, when serving aboard the U.S.S. Yellowstone (AD-24), he continued to live and work aboard the ship when it was in a dry dock for repairs. In that statement, he described the noise as “excruciating” and, during his hearing testimony, he remembered frequent “banging” and “chipping” noises against the metal surfaces of the ship. The Veteran submitted a copy of an e-mail message from the Office of Research Services of the National Archives, confirming that the ship was in dry dock for almost a month in the Spring of 1965 when the Veteran was part of its crew. This evidence is enough to satisfy the in-service injury requirement of his claim. In a VA examination report, dated February 2014, the examiner wrote that the Veteran experienced tinnitus. With respect to tinnitus, a layperson is qualified to diagnose a disability. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). Thus, the evidence satisfies the current disability requirement of the claim. Accordingly, the success of the claim depends on whether a causal relationship exists between tinnitus and the in-service exposure to loud noises. To help decide this question, the AOJ obtained an opinion from the February 2014 examiner. The examiner wrote that it was less likely than not that a relationship existed between in-service noise exposure and either hearing loss or tinnitus. To explain this opinion, the examiner relied on the absence of any reports of hearing loss or tinnitus in the service treatment records. As the Board explained in its November 2019 remand, this rationale is inconsistent with Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (an examiner may not rely on the absence of the claimed disability in the service medical records, standing alone, to justify an unfavorable nexus opinion), especially in a case when the in-service records indicated an unreliable “whisper test” and the relevant medical history forms did not ask the Veteran whether he had experienced hearing loss or tinnitus. In January 2020, the AOJ obtained two opinions with respect to hearing loss and tinnitus, respectively. As noted, the AOJ granted service connection for hearing loss based on the examiner’s opinion that, based on the Veteran’s statements, the limits of the “whisper” test, and the possibility of delayed onset hearing loss, it was at least as likely as not that his hearing loss is related to noise exposure in service. For tinnitus, the examiner reached the opposite conclusion, in part based on her assessment of what she described as the Veteran’s “conflicting testimony” concerning the timing of the initial onset of tinnitus. The January 2020 opinion relied on the “etiology” portion of the February 2014 report, which indicates that the Veteran experienced acoustic trauma in November 1986 during his post-service civilian employment. Although the 2014 report described this information as being documented in an audiometric report dated November 1986, no report of that date appears to be part of the record and, in spite of the Board’s instructions, the AOJ was apparently unsuccessful in its efforts to locate this report on remand. The January 2020 examiner also rejected the possibility of a causal connection because of what she described as a “denial of tinnitus at 2009 audio exam which conflicts with onset being on active duty.” One problem with this opinion is that, in general, credibility determinations based on the significance of a claimant’s conflicting statements are the responsibility of the Board, not of the VA examiner. Cf. Sizemore v. Principi, 18 Vet. App. 264, 275 (2004). Moreover, the only “denial of tinnitus” in 2009 appears to be an ambiguous symbol before the word “tinnitus” in a series of handwritten notes beneath a set of audiometric test results prepared by a private audiologist in August 2009. A subsequent private audiogram, dated October 2013, refers to “intermittent tinnitus” which suggests the possibility that the significance of the 2009 report is only that, although he was experiencing tinnitus intermittently since service, the Veteran was not experiencing the sensation at the precise time of his August 2009 hearing test. Yet another problem with the January 2020 tinnitus opinion is that, even if it were established that the Veteran had denied tinnitus in 2009, that would not support the examiner’s alternative theory that his tinnitus began in 1986. Because of these weaknesses in the January 2020 tinnitus opinion, the Board has considered the possibility of remanding the case for further development. But “even if a medical opinion is inadequate to decide a claim, it does not follow that the opinion is entitled to absolutely no probative weight.” Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012). The Board finds that, when considered together with the Veteran’s statements and the favorable opinion concerning his bilateral hearing loss disability, the evidence is approximately evenly balanced as to whether the Veteran’s tinnitus is related to in-service noise exposure. In March 2016, the Veteran responded to the alternative theory that his hearing loss and tinnitus were caused by post-service noise exposure. He wrote that, “I had problems with my hearing prior to [post-service noise exposure] . . .” At the hearing, he testified that he first noticed ringing and buzzing sensations in his ears in 1965, when his ship was being repaired in the dry dock. The examiner’s favorable opinion on hearing loss amounts to medical evidence that it is at least as likely as not that his in-service noise exposure was sufficiently significant to cause trauma to both ears. That evidence, together with the Veteran’s testimony concerning the timing of the onset of a condition he is competent to identify, see Charles, 16 Vet. App. at 374, is enough to bring the evidence of a causal connection into equipoise. By law, the doubt resulting from this equipoise in the evidence is resolved in the Veteran’s favor. See 38 U.S.C. § 5107(b); Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (“By requiring only ‘an approximate balance of positive and negative evidence’... , the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding... benefits.”). Accordingly, the Board will grant service connection for tinnitus. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Nye, 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.