Citation Nr: 21067009 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 15-10 188 DATE: November 3, 2021 ORDER Entitlement to service connection for tinnitus is granted. FINDING OF FACT The evidence is in a state of relative equipoise regarding whether tinnitus relates to service. CONCLUSION OF LAW The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1969 to February 1970. He then served in the U.S. Army Reserve on multiple periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) until retirement in 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, the Veteran testified in a hearing before the Board. A transcript of the hearing is included in the record and has been reviewed. In August 2018, the Board remanded the claim on appeal for additional development. The case is again before the Board for appellate review. Service Connection The Veteran claims that acoustic trauma during service caused hearing loss disability and tinnitus. The RO granted entitlement to service connection for bilateral hearing loss disability in an August 2020 rating decision. Relevant legal authority Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during active service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). The term active service includes active duty, any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6 (a). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence showing (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Certain chronic disorders such as neurological disorders are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307 (a), 3.309(a). 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those disabilities specified as chronic under 38 C.F.R. § 3.309 (a)). This evidentiary presumption (in addition to certain others) does not extend to service connection claims based on a period of ACDUTRA or INACDUTRA. See Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995); 38 U.S.C. §§ 101, 1111, 1112; 38 C.F.R. §§ 3.304 (b), 3.306, 3.307, 3.309. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Evidence and analysis The evidence in this matter consists of lay statements from the Veteran, service treatment records (STRs), service personnel records (SPRs), VA treatment records, a November 2013 private audiology report, and VA examination reports dated in February 2014, August 2019, and May and July 2020. For the following reasons, a service connection finding is warranted here. First, VA and private medical evidence documents the diagnosis of tinnitus. This is noted most recently in the 2020 VA reports. Second, the evidence establishes that the Veteran was exposed to hazardous noise during service. The STRs do not note evidence of tinnitus. But the SPRs indicate that the Veteran was exposed to weapons fire and heavy machinery during service. During the Board hearing, the Veteran provided details regarding noise exposure involving not only heavy machinery but grenade explosions as well. Moreover, in finding bilateral hearing loss service connected, the RO recognized noise exposure during service. Thus, although STRs do not detail treatment for a hearing problem during service, the evidence indicates that the Veteran experienced acoustic trauma during service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Third, the evidence is in a state of relative equipoise regarding whether tinnitus is due to in-service noise exposure. On the one hand, the VA opinions do not support the claim. In the February 2014 and May 2020 reports, the examiners found unlikely the notion that tinnitus related to service. These opinions are not probative, however. As noted in the Board remand, the February 2014 report is not based on sufficient evidence because the author of the report did not examine or interview the Veteran. With regard to the May 2020 opinion, the VA examiner provided inconsistent findings. In the August 2019 report she indicated it would be speculative to comment on whether tinnitus related to service. In April 2020, she found bilateral hearing loss disability related to service. Then, after the negative May 2020 opinion against the tinnitus claim, she reiterated in July 2020 that it would be speculative to comment on the matter. The VA opinions are therefore of limited probative value. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician's statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion). By contrast, the private audiologist who submitted the November 2013 report clearly found service and tinnitus connected, and clearly attributed the disorder to the Veteran's documented exposure to noise during service. This examiner, in the only opinion of record addressing the issue of secondary service connection, also indicated that tinnitus may even relate to service-connected hearing loss disability. See 38 C.F.R. § 3.310. In assessing the nexus element, the Board has also considered the Veteran's lay statements connecting tinnitus to active service, and to noise exposure during service. See Jandreau, supra. Based on the foregoing, the Board cannot find that a preponderance of the evidence is against the claim of entitlement to service connection for tinnitus. Accordingly, this is an appropriate case in which to invoke VA's doctrine of reasonable doubt, grant the Veteran the benefit of the doubt, and grant the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher McEntee 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.