Citation Nr: 21065106 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 18-21 511 DATE: October 25, 2021 ORDER New and material evidence having been received, the claim for entitlement to service connection for tinnitus is reopened. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The Veteran was denied service connection for tinnitus in an April 2015 rating decision. He did not file a timely notice of disagreement (NOD) or submit new and material evidence during the appeal period, rendering that rating decision final. 2. Evidence submitted since the April 2015 rating decision raises a reasonable possibility of substantiating the claim for entitlement to service connection for tinnitus. 3. The Veteran's tinnitus had its onset during active duty. CONCLUSIONS OF LAW 1. The April 2015 rating decision denying entitlement to service connection for tinnitus is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. Additional evidence received since the April 2015 rating decision is new and material and the claim for entitlement to service connection for tinnitus is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from October 1970 to April 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. Entitlement to service connection for tinnitus The Veteran contends that his tinnitus onset during service and he has had symptoms since his separation from service. Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service 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 as an organic disease of the nervous system, will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Where a veteran engaged in combat, satisfactory lay evidence that an injury or disease was incurred in service will be accepted as sufficient proof of service connection where such evidence is consistent with the circumstances, conditions, or hardships of service. 38 U.S.C. § 1154(b). The combat rules not only reduce the evidentiary burden for establishing in-service injury but allow a combat veteran to use "satisfactory lay or other evidence" to establish that he incurred the disability itself in service, even in cases where "there is no official record" that such injury or disability occurred. Reeves v. Shinseki, 682 F.3d 988, 998 (Fed. Cir. 2012). Here, the Veteran earned the Combat Infantryman Badge, and thus combat service is confirmed. In his October 2021 testimony before the Board, the Veteran credibly testified that he was exposed to hazardous noise for approximately 75 percent of his active duty tour, including weapons fire, grenade detonations and explosions. The Veteran's lay statements are therefore sufficient to show acoustic trauma due to combat, and the in-service injury element of the claim for service connection for tinnitus has therefore been met. See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). Moreover, the fact that the claimed cause of the Veteran's tinnitus, i.e., acoustic trauma from exposure to weapons noise during combat service, is therefore established by his statements, does not prevent him from also invoking the section 1154(b) presumption in order to show that he incurred the disability itself while in service. Reeves, 682 F.3d at 999. Because tinnitus is "subjective," its existence is generally determined by whether or not the Veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). During the March 2015 VA examination, the Veteran reported bilateral, constant tinnitus since his service in Vietnam. During his October 2021 testimony before the Board, the Veteran specifically reported that the tinnitus or ringing in his ears began after a night of gunfire in August 1971 when the Veteran was exchanging fire against an enemy approximately 25 yards away from him. The Veteran has competently stated that he has tinnitus, and the Board finds his statements to be credible. Therefore, there is evidence of a current disability. During the March 2015 VA examination, the Veteran reported that he had bilateral, constant tinnitus since his service in Vietnam and denied occupational history of noise exposure since service. The VA examiner found no medical evidence of tinnitus until 2012 and found evidence of post-service noise exposure in the Veteran's May 2012 reports of hunting and work at construction sites. The examiner therefore opined that it was less likely than not that the Veteran's tinnitus was caused by or onset during service. The Board finds that, given the application of 38 U.S.C. § 1154(b) as explained in Reeves, the Veteran's lay testimony along with the other evidence above regarding the Veteran's duties in service provides a sufficient basis to conclude that his current tinnitus onset during service and has been continuously symptomatic since that time. The Board accords little probative weight to the VA examiner's opinion because the examiner did not take into account of the Veteran's competent and credible statements regarding onset of his tinnitus. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). (Continued on the next page) The preponderance of the evidence thus indicates that the Veteran's tinnitus onset during service and has been continuously symptomatic since that time. Entitlement to service connection for tinnitus is therefore warranted. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). J. NICHOLS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Dean, 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.