Citation Nr: 21062250 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 19-37 809 DATE: October 6, 2021 ORDER Entitlement to service connection for tinnitus is granted. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, his recurrent tinnitus is due to his in-service noise exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1965 to June 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal of a January 2019 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). 1. Entitlement to service connection for tinnitus is granted. The Veteran asserts that service connection for tinnitus is warranted based upon his in-service noise exposure. In a November 2018 statement, the Veteran indicated that he had hazardous noise exposure while in-service. Service connection has been established for hearing loss based upon in-service noise exposure. Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C. § 1110. Service connection may 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). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). An organic disease of the nervous system, including tinnitus, is a "chronic disease" listed under 38 C.F.R. § 3.309(a). Fountain v. McDonald, 27 Vet. App. 258, 275-76 (2015). Therefore, the provisions of 38 C.F.R. § 3.303(b) are for application. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such during active service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless they are clearly attributable to intercurrent causes. Generally, if a condition noted during active service is not shown to be chronic, then, a "continuity of symptoms" after service is required to establish service connection. 38 C.F.R. § 3.303(b). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's service treatment records, including March 1968 separation examination and medical history report, do not refer to tinnitus or ringing of the ears. The Veteran's records reflect that he worked as a Fire Control Crewman, light vehicle operator, and heavy vehicle operator. In August 2015 and May 2016 VA progress notes, the Veteran denied tinnitus. In a June 2018 VA progress note, the Veteran reported a ringing sensation for a long time that has become more frequent and more severe. Turning to the question of whether there is an etiological relationship between the Veteran's service and his diagnosed tinnitus, the Board notes that the record contains two etiology opinions which must be considered and weighed. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993). 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). The Board will consider each of these opinions below. The Veteran submitted a November 2018 private statement from Dr. D. B. stating the Veteran was seen in his office and provided a hearing test and that the Veteran reported he has constant ringing and/or buzzing sound in his ears all the time. After reviewing the Veteran's concerns and his test results, the medical diagnosis was tinnitus that affected his hearing and all aspects of his everyday life. The provider noted that while one cannot say exactly how long this condition existed prior to the date of diagnosis, it is as likely as not that the Veteran's exposure to missile launches, large engine noise, and heavy equipment during his active duty United States Army service contribute to or cause his current hearing loss and tinnitus conditions. In January 2019, the Veteran was afforded a VA audiological evaluation where he reported hearing noises in his ears described as the sound from a toy that small children play with. The examiner noted the Veteran's reports that his tinnitus started in his right ear and now is in both ears and that he first started noticing it around the year 2000 but it did not get bothersome until 2018. The examiner opined the Veteran's tinnitus is less likely than not caused by or a result of military noise exposure as the onset of tinnitus is reported by the Veteran to be in 2000, or over 30 years post-separation. The examiner further reasoned that there is no report of tinnitus in service treatment records, at separation or in the medical records until the time of the claim. The examiner noted that the current literature does not support late onset noise-induced tinnitus. The competent evidence as to the etiology of his tinnitus is in conflict. While the January 2019 examination report concluded that the Veteran's tinnitus began after service separation and was not related to in-service noise exposure, the private provider found it is at least as likely as not that the Veteran's tinnitus is due to in-service noise exposure. Given the existence of evidence both for and against the claim, the Board finds that the evidence is in relative equipoise as to whether the Veteran's tinnitus is due to active service. Moreover, the Board notes that it is prohibited from developing additional evidence for the purpose of obtaining evidence against a claimant's case. See Mariano v. Principi, 17 Vet. App. 305 (2003). Upon resolution of all reasonable doubt in the Veteran's favor, the Board concludes that service connection is warranted for tinnitus. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. M. Donahue Boushehri, 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.