Citation Nr: 21004119 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 18-52 352 DATE: January 26, 2021 ORDER Entitlement to service connection for tinnitus is granted. FINDING OF FACT The evidence of record is in relative equipoise as to whether the Veteran’s currently diagnosed tinnitus is related to his hazardous noise exposure in service. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus has 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 in the United States Army, from February 1971 to June 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Janesville, Wisconsin. This rating decision denied service connection for a tinnitus disability. A Notice of Disagreement (NOD) was submitted in September 2016 and a Statement of the Case (SOC) was issued in October 2018. The Veteran perfected his appeal in November 2018. The Board denied the claim in August 2019. The Veteran appealed the denial to the Court of Appeals for Veterans Claims (CAVC). The parties agreed in a February 2020 Joint Motion For Partial Remand (JMPR) that the decision should be remanded for a medical opinion. The CAVC granted to JMPR, vacating that portion of the decision and remanding the issue to the Board. The Board remanded the decision in July 2020 for further development. Such was accomplished, and the appeal returned to the Board. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 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 granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, such as tinnitus, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service (typically one year); or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). 1. Entitlement to service connection for tinnitus, is granted. The Veteran contends that service connection for his tinnitus disability is warranted as he suffered acoustic trauma when exposed to loud noise during military service. Specifically, as the Veteran’s military occupational specialty (MOS) was Infantryman, he claims to have been exposed to noise from military weaponry in-service. In the present case, there is no dispute that the Veteran has a current tinnitus diagnosis. The condition was definitively diagnosed in July 2016. See Hearing Loss and Tinnitus DBQ (July 13, 2016). Therefore, a current disability has been established. Additionally, the Veteran’s service personnel records show that his military occupational specialty was Light Weapons Infantry. This is known to involve hazardous noise exposure. Therefore, an in-service event has been established. The remaining question is whether the Veteran’s tinnitus condition was caused by or the result of his in-service noise exposure. The Veteran was initially afforded a VA examination in July 2016 for his claimed tinnitus disability. During the examination, the Veteran reported that the tinnitus condition began 10 years prior, with associated symptoms including bilateral periodic ringing in the ears. See Hearing Loss and Tinnitus DBQ (July 13, 2016). At this time, the examiner confirmed the Veteran’s tinnitus diagnosis, provided the Veteran has no functional impairment, and opined it is less likely than not (less than 50% probability) caused by or a result of military noise exposure. Significantly, he further provided that tinnitus is a subjective complaint and no objective measure exists to verify the presence or absence of the condition. The reasoning, however, relied on information that was inaccurate. Therefore, this opinion is inadequate. The Veteran was afforded a second VA examination in October 2020. During this examination, the Veteran reported a gradual onset of a real light noise that he noticed when he was trying to fall asleep. See Hearing Loss and Tinnitus DBQ (October 14, 2020). The examiner opined, “without the presence of hearing loss at the Veteran’s exit of the military, no documentation of a significant threshold shift during military service, and without documentation of the tinnitus, it is less likely than not (less than 50% probability) caused by or a result of military noise exposure.” This conclusion was also based on the Veteran’s reported exposure to firearm noise while alternatively confirming the consistent use of hearing protection devices. A November 2020 addendum opinion further addressed the medical literature cited in the July 2016 VA examination. Here, the examiner provided, “it is commonly accepted that the consequences of acoustic trauma can manifest gradually, overtime, and may not be evident for years after the event that caused the trauma. Considering that the Veteran’s report of onset varied in the October 2020 evaluation and his 2016 evaluation, exact onset was not established. The Veteran reported that his tinnitus occurs at the right ear. The Veteran is a right-handed shooter, and should the tinnitus be the result of the Veteran’s exposure to firearms, his left ear is expected to be impacted more than the right as a result of the head-shadow effect. The Veteran reported that the tinnitus he experiences is episodic in nature, has a roaring sound quality, and is accompanied by aural fullness, vertigo, and nausea. The Veteran reported that vertigo is not aggravated by movement. The symptoms that the Veteran reported are not consistent with acoustic trauma as a result of noise exposure.” In support of his contention that service connection for his tinnitus condition was warranted, the Veteran submitted a medical opinion from his private physician in August 2020. See Statement by Dr. W.T. (August 28, 2020). Here, Dr. W.T. confirmed the Veteran was being seen for chronic tinnitus of the right ear. Dr. W.T. noted the Veteran previously offered that he did not have tinnitus prior to entering the military and while on active duty, he suffered noise exposure that caused ringing in the right ear and that progressively worsened over time. After Dr. W.T. was unable to find an alternative cause for the tinnitus condition, and after reviewing the Veteran’s medical, surgical, family, social and occupational histories, he concluded the condition was related to military service. Id. The Board finds that the evidence is in equipoise as to whether the Veteran’s currently diagnosed tinnitus is related to his in-service hazardous noise exposure. While there is disagreement between the November 2020 VA opinion and the August 2020 private opinion as to whether the Veteran’s tinnitus disability was incurred in service, the Board finds both the opinions of record to be highly persuasive on the inherently medical question before the Board. They are based on a thorough review of the Veteran’s pertinent history and each provides the underlying reasons for the conclusions reached. Thus, they are entitled to relatively equal probative weight. When the evidence is in equipoise, the benefit of the doubt goes to the Veteran. Therefore, service connection is warranted. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Associate Counsel Donna M. Williams 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.