Citation Nr: 21061386 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 19-38 306 DATE: October 1, 2021 ORDER Entitlement to service connection for tinnitus as secondary to service connected hearing loss is granted. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, his tinnitus was caused or aggravated by his service connected hearing loss. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus as secondary to service connected hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from March 1963 to March 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 8, 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, after the May 2018 rating decision, the Veteran submitted new and material evidence received within one year of the above rating decision, 38 C.F.R. § 3.156(b). Despite the receipt of new and material evidence, the claim was once again denied in an October 2018 rating decision, the Veteran then returned a Notice of Disagreement received in August 2019, and after a subsequent Statement of the Case issued on November 26, 2019, the Veteran perfected his appeal upon receipt of the VA Form 9 in December 2019. The Veteran testified before the undersigned Veterans Law Judge on July 1, 2021, with his attorney present. A transcript of the hearing has been produced and associated with the claims file. This appeal is advanced on the docket based upon the Veteran's age. 38 C.F.R. § 20.900(c). 1. Entitlement to service connection for tinnitus as secondary to service connected hearing loss is granted. 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; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the claimed in-service disease or injury and the present disability. See, e.g., Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). For secondary service connection to be granted, generally there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Service connection also may be established on a secondary basis for: (1) a disability that is proximately due to or the result of a service-connected disease or injury; or, (2) any increase in the severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease or injury. 38 C.F.R. §§ 3.310(a)-(b); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (explaining 38 C.F.R. § 3.310(b)). The Veteran contends that his current diagnosed tinnitus had in-service onset, or is related to acoustic trauma in service, or else is secondary to service-connected hearing loss. See, e.g.: Rating Decision (Codesheet) (Oct. 17, 2018) (confirming service-connected hearing loss effective June 24, 2013). The Veteran testified that he was consistently exposed to loud noises from missiles, by virtue of his service. See Hearing Tr. (July 1, 2021) at Page 3. This is confirmed by the Veteran's Form DD Form 214, which identifies his military occupational specialty (MOS) as a missile facilities specialist ("msl facl spec") (code 54150). See Form DD-214 at Question No. 25a. The Board finds that the Veteran's report of in-service noise exposure to be consistent with the circumstances of his service. See 38 U.S.C. § 1154. During the July 2021 Board hearing, the Veteran testified that he did not know that tinnitus was a diagnosis, or else that he suffered from it, until he presented at a local VA medical center to obtain documentation to earn military discounts at various stores, "and my wife [said], and while you're there, check your hearing, because you're not listening to me. You're not hearing me. To me it was just normal." See Hearing Tr. at Pages 5-6. See also VA Exam (Apr. 12, 2018), at Page 2 ("Evidence comments: The Veteran was fit with hearing aids on [date redacted]. A note dated [redacted] revealed tinnitus began a year ago. No entrance or exit exams were found."); id. at Page 6, Section 2, Question 1 ("Medical History: Circumstances of onset: The Veteran reported he thought it was his fan."). Tinnitus is a disorder that is capable of lay diagnosis. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Veteran is therefore competent to report his ongoing experience of tinnitus ever since he realized that his tinnitus was not simply a sound of everyday life. In addition, he was diagnosed at his local VA medical center as recounted above. With regards to nexus, the Board notes that the record contains two separate etiology opinions which must be considered and weighed. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (stating that the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). When faced with conflicting medical opinions, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board will consider each of these opinions below. An April 2018 VA examiner opined that service connection is not warranted for the Veteran's tinnitus because it was neither at least 50 percent likely a symptom associated with his hearing loss, see VA Exam (Apr. 12, 2018), supra, at Pages 6-7, Section 2, Question No. 2 ("Etiology of Tinnitus") ("Tinnitus is less likely as not associated with hearing loss due to the significant difference in the time of onset of hearing loss and tinnitus, which would indicate separate etiologies. Therefore, the examiner opined that it is less likely than not that the tinnitus is related to hearing loss."), nor at least 50 percent likely due to military noise exposure, see id. ("Onset of tinnitus is reported by the Veteran post-separation. There is no report of tinnitus in service treatment records, at separation or in the medical records until the time of the claim. The current literature does not support late onset noise-induced tinnitus."). To the extent that the VA examiner of record appears to have relied on an absence of medical evidence, medical opinion that rely solely on absence of evidence from the record are inadequate. Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (2006); Jandreau v. Nicholson, 492 F.3d 1372 (2007). Furthermore, the Board finds the Veteran's testimony credible as to how he did not diagnose himself with tinnitus earlier, and why he otherwise appears to have prosecuted a claim for tinnitus after hearing loss instead of at the same time. A May 2021 opinion from Dr. B.TS., a private otolaryngologist, indicates that "[t]he VA feels that the tinnitus is not related to his sensorineural hearing loss since it was delayed onset. Certainly, the tinnitus has to be partially related to his hearing loss which he developed in the military when he worked in missile silos. He has noise induced hearing loss of moderate to severe degree. His VA hearing aids are beneficial." See Medical Treatment Records by Dr. B.T.S., MS ( Aug. 9, 2019; May 7, 2021 ). The Board interprets Dr. B.T.S.'s positive conclusion as his accepting the Veteran's theory that notwithstanding the delay in applying for service connection for tinnitus after hearing loss, the tinnitus is attributable to hearing loss, either as from the same in-service occurrence, or else as secondary to service-connected hearing loss. The Board also concludes that this opinion to be supported by a well-reasoned explanation, taking into account a full and accurate history of the chronology of the Veteran's symptoms and his additional lay statements as relevant. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2009); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion must support its conclusion with an analysis the Board can consider and weigh against contrary opinion."). (Continued on the next page) After reviewing the medical opinions and other evidence outlined above (to specifically include the Veteran's credible hearing testimony), the Board finds that the evidence both for and against his claim is at the very least in equipoise as to whether the Veteran's tinnitus was secondary to service-connected hearing loss. Resolving all doubt in the Veteran's favor, entitlement to service connection for tinnitus as secondary to service connected hearing loss is warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The benefit sought on appeal is granted. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael B. Engle, 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.