Citation Nr: A21016992 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 201229-130665 DATE: October 20, 2021 ORDER Entitlement to service connection for tinnitus is granted. FINDING OF FACT The probative evidence of record weighs in favor of finding that the Veteran's tinnitus began during active service and has been ongoing ever since. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. § 1110, 1131; 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 March 1986 to June 2004. The rating decision on appeal was issued in October 2020 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the December 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). The Veteran attended a hearing before the undersigned Veterans Law Judge in June 2021. A transcript of the hearing is of record. In the October 2020 decision, the AOJ found that new and relevant evidence was submitted to warrant readjudicating the claim for service connection for tinnitus. The Board is bound by this favorable finding. Entitlement to service connection for tinnitus The Veteran contends that service connection is warranted for tinnitus because it began during service as a result of noise exposure and has been ongoing ever since. 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). 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, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, it is undisputed that the Veteran has tinnitus. A current disability has therefore been demonstrated. The Veteran testified that he was exposed to acoustic trauma from pistol and shotgun fire, as well as noise from proximity to the flight deck. The Veteran is competent to report noise exposure during service and the Board finds his statements regarding noise exposure to be credible and consistent with the circumstances of his service as reported in the service personnel records. Accordingly, an in-service injury has been shown. As the record contains evidence of a current disability, and evidence of an in-service injury or disease, what remains to be established is whether there is a nexus between the diagnosed tinnitus and his in-service disease or injury. The Veteran had an examination for his tinnitus in December 2019. The examiner opined that it was less likely than not that the Veteran's tinnitus was caused by or a result of military noise exposure. The examiner stated that the Veteran had little noise exposure during service, and that his current ringing in the ears is rare and intermittent. The Veteran had another examination for his tinnitus in June 2020. The examiner opined that it was less likely than not that the Veteran's tinnitus was caused by or a result of military noise exposure. The examiner stated that there is no objective evidence to support the presence of tinnitus in the Veteran's medical records, and he denied having it in 2003 during a hearing evaluation. Additionally, the examiner noted that the Veteran's MOS has a low probability of noise exposure. The examiner further noted that the Veteran presented with a bilateral high frequency hearing loss, and that tinnitus can be a symptom. The Veteran submitted a private medical opinion from Dr. L.C. in October 2020. Dr. L.C. opined that it was more likely than not that the Veteran's tinnitus was caused by or a result of his military service. Dr. L.C. stated that the opinion was based on the Veteran's most recent audiogram which demonstrated sensorineural hearing loss of bilateral ears as well as the Veteran's description of his military service. Dr. L.C. specifically noted that despite the Veteran's administrative roles during service, he still had exposure to loud noises while stationed on multiple aviation bases. At the June 2021 Board hearing, the Veteran testified that he was exposed to loud noise in service from pistol and shotgun fire while assigned to security forces, as well as from his proximity to aircraft. Specifically, the Veteran testified that he was frequently close to the flight deck or tarmac where aircraft were constantly testing their engines, as well as taking off and landing. The Veteran further testified that he did not recognize it as tinnitus at the time of his separation because he was not asked if he had ringing in his ears. The Veteran testified that his tinnitus definitely began during active service and has continued ever since. The Board finds that the probative evidence of record indicates that the Veteran's tinnitus is related to his service. The Board finds the October 2020 private opinion to be probative because it provided an adequate rationale based on the evidence of record. The October 2020 private opinion indicates that the Veteran's current tinnitus is at least as likely as not related to his exposure to loud noise during service. Furthermore, there is no probative medical evidence that directly contradicts this opinion. The Board does not find the December 2019 and June 2020 medical opinions to carry significant probative weight. The December 2019 and June 2020 examiners did not adequately address the Veteran's competent lay statements of record regarding the onset of his tinnitus symptoms and his exposure to acoustic trauma in service. Accordingly, the December 2019 and June 2020 medical opinions are not probative. Furthermore, the Board finds the Veteran's testimony to be credible on the issue, especially given that, unlike many disabilities, tinnitus is one that is wholly observable through one's own senses. Therefore, it does not require medical expertise to identify. Because the Veteran is currently diagnosed with tinnitus, and because the probative medical evidence of record indicates that it is at least as likely as not that the Veteran's tinnitus is related to service, the evidence supports a grant of service connection. The appeal is granted. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David M. Sebstead, 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.