Citation Nr: 21067977 Decision Date: 11/08/21 Archive Date: 11/08/21 DOCKET NO. 18-22 445 DATE: November 8, 2021 ORDER Entitlement to service connection for tinnitus is granted. FINDING OF FACT Tinnitus is attributable to service. CONCLUSION OF LAW Tinnitus was incurred in wartime service. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1968 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims folder. During the October 2019 Board hearing, the VLJ clarified the issue on appeal; clarified the concept of service connection claims; identified potential evidentiary defects which included evidence of a nexus between the Veteran's tinnitus and service; clarified the type of evidence that would support the Veteran's claim; and enquired as to the existence of potential outstanding records. Thus, the actions of the VLJ supplement the VCAA and comply with any related duties owed during a hearing set forth in 38 C.F.R. § 3.103. A January 2020 Board decision denied the Veteran's tinnitus claim. A March 2021 Memorandum Decision of the Court of Appeals for Veterans Claims (Court) vacated that portion of the Board decision that denied service connection for tinnitus and remanded the matter to the Board. The Court noted that a January 2017 VA examiner's opinion as to a nexus between the Veteran's tinnitus and service relied upon by the Board in denying the claim was inadequate as the examiner's rationale appeared to pertain entirely to the Veteran's bilateral hearing loss disability and provided no insight into the examiner's opinion regarding the Veteran's tinnitus. The Veteran's claims folder has returned to the Board for further appellate consideration. Service connection for tinnitus Veterans are entitled to compensation from VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). 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 service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran claims entitlement to service connection for tinnitus from exposure to excessive noise in his quarters. See the Veteran's statement dated March 2021. The Board finds the Veteran's report of noise exposure during service is consistent with the record. The Board further notes that the Veteran received the Sharpshooter (Rifle) badge which is also consistent with in-service noise exposure. The Veteran's service treatment records do not include complaints, treatment, or diagnosis of tinnitus. The Veteran reported in a statement dated March 2021 that his tinnitus began while in service. He also reported during a January 2017 VA audiological examination that he had tinnitus for "many years." Indeed, the Veteran has not indicated in any statement that his tinnitus began after service. Tinnitus is a condition that may be diagnosed by its unique and readily identifiable features, and the presence of the disorder is not a determination that is medical in nature and is capable of lay observation. Charles v. Principi, 16 Vet. App. 370 (2002). A layperson also is competent to testify as to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995). The Board further notes that tinnitus may be subject to service connection on a presumptive basis as an "organic disease of the nervous system" under 38 C.F.R. § 3.309(a). See Fountain v. McDonald, 27 Vet. App. 258 (2015); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, there is evidence of in-service noise exposure, reports of tinnitus during service, and reports of a continuity of symptomatology from service. While the Board does note that service treatment records do not document any relevant complaints or diagnoses, in light of the credible report of in-service noise exposure, the Veteran's competence to identify tinnitus, and his generally consistent reports of onset in service and continuity thereafter, the Board concludes that entitlement to service connection is warranted. The Board acknowledges the January 2017 VA opinion of record in which the examiner concluded that it was less likely as not that the Veteran's tinnitus was related to service. However, the Court did not find this evidence sufficient to overcome the aforementioned evidence that tinnitus was incurred in service. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Arif Syed, 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.