Citation Nr: A21016362 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 210915-184783 DATE: October 5, 2021 ORDER The claim for service connection for tinnitus is granted. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, the Veteran's current tinnitus had its onset during active military service. CONCLUSION OF LAW Service connection for tinnitus is warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1961 to April 1964. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2021 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claim was developed in accordance with VA's modernized appeals system. Following the May 2021 rating decision, the Veteran opted to appeal his claim for service connection to the Board through the Direct Review process. The evidentiary record is therefore closed as of the date of the rating decision on appeal and the Board cannot consider any additional evidence added to the record after this date. 1. Entitlement to service connection for tinnitus. 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). The May 2021 rating decision made several favorable findings in this case. First, that new and relevant evidence has been received to warrant readjudication of a previous denial of service connection for tinnitus. Next, the AOJ acknowledged that the evidence established the presence of a current disability and an in-service injury. Specifically, the AOJ found that the record contains medical evidence establishing the presence of tinnitus, including a diagnosis from an October 2020 VA examination. The AOJ also determined that the Veteran sustained an in-service injury, in that he was exposed to noise during service as shown by his competent reports of helicopter and firearm noise, as well as receipt of the Sharpshooter Badge. The Board is bound by the RO's favorable findings, absent clear and unmistakable error. 38 C.F.R. § 3.104(c). In addition to the in-service injury found by the RO, the Board further finds evidence of an in-service disease, tinnitus. The record reflects that the Veteran has reported the onset of his tinnitus during active duty. Because of the inherently subjective nature of tinnitus, it is readily capable of lay diagnosis. Charles v. Principi, 16 Vet. App. 370 (2014). Thus, the appellant is competent to report when he began experiencing tinnitus. With respect to the question of whether the Veteran's competent reports of tinnitus in service are credible, the Board has considered the inconsistencies in the Veteran's history regarding the onset of his tinnitus; during a September 2019 audiology examination at the VA Medical Center (VAMC), the Veteran dated the onset of tinnitus to the 1980s or 1990s. In contrast, during an October 2020 VA examination, the Veteran stated that his tinnitus began during active duty. The Board acknowledges the conflict between the Veteran's reports of the onset of tinnitus, but also notes that in March 2021 correspondence, the Veteran's representative stated that any discrepancy in the Veteran's history was due to memory difficulties associated with Parkinson's disease. Given the explanation of the inconsistencies in the record by the Veteran's representative, the Board finds the Veteran's reports of onset of tinnitus are at least as likely as not indicative of the onset of tinnitus during active duty. Thus, the Board finds that the record is also sufficient to establish an in-service disease, tinnitus. (Continued on the next page) With respect to the third element, a nexus, the Board acknowledges the negative VA medical opinions of record. Despite these negative nexus opinions, the law provides an alternative means of establishing a nexus for chronic diseases such as tinnitus. When a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. See 38 C.F.R. § 3.303(b). Here, the Veteran has presented evidence of the onset of chronic tinnitus during active duty, in the form of his statements. With evidence of acoustic trauma, tinnitus is considered an organic disease of the nervous system, falling within the parameters of 38 C.F.R. § 3.309(a). Fountain v. McDonald, 27 Vet. App. 258, 259 (2015). Again, given the subjective nature of tinnitus, the Veteran's statements describing the onset of chronic tinnitus during active duty and its continuance thereafter are competent. Moreover, for the reasons discussed above, the Board finds it as likely as not that they are credible. As the record contains no indication that the Veteran's currently diagnosed tinnitus is attributable to an intercurrent cause, service connection is established. K. Conner Veterans Law Judge Board of Veterans' Appeals M. Riley, Attorney for the Board Department of Veterans Affairs 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.