Citation Nr: 21068130 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 19-28 186 DATE: November 9, 2021 ORDER Entitlement to service connection for tinnitus is granted. FINDING OF FACT Tinnitus had its' onset in service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been 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 with the United States Air Force (USAF) from October 2011 to October 2015. In June 2020, a Veterans' Law Judge not the undersigned issued a Board of Veterans' Appeal (Board) decision that, among other things, denied the claim of service connection for tinnitus. The Veteran appealed the June 2020 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2021 order, which incorporated the parties Joint Motion for Remand (JMPR), the Court vacated and remanded the June 2020 Board decision to the extent that it denied service connection for tinnitus. The Service Connection Claim The Veteran asserts, in substance, that service connection is warranted for his tinnitus because it started on active duty in approximately 2012 and continued to the current time. In this regard, the Veteran claims his tinnitus was caused by acoustic trauma due to his exposure to loud noise from heavy construction equipment and jets taking off and landing at nearby airfields due to his job building and maintaining roads and walkways because of his occupational specialty of Pavement and Construction Equipment including while stationed at Travis Air Force Base. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b). See also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including sensor neural hearing loss, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this regard, in order to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Initially, the Board finds that the Veteran has a diagnosis of tinnitus. See, e.g., VA examination dated in March 2018. Next, the Board notes that the Veteran's DD 214 list's his occupational specialty as Pavement and Construction Equipment and his service treatment records show he served at Travis Air Force Base. Additionally, the Board finds the Veteran both competently and credibly reported being exposed to loud noise from heavy construction equipment and jets taking off and landing at nearby airfields while serving in the USAF. See Davidson, supra. Given this record, and granting the Veteran the benefit of any doubt in this matter, the Board concludes that he had an injury (i.e., acoustic trauma) while on active duty. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, supra. Further, the Board notes that at a July 2015 examination prior to the Veteran's separation from active duty, he reported that his ears "go numb from time to time." Similarly, and as noted by the JMPR, the Veteran in his October 2015 "Pre-Discharge Compensation Claim" reported that he had a problem with tinnitus. Moreover, given the nature of the Veteran's service (i.e., Pavement and Construction Equipment operator with service at Travis Air Force Base) it is reasonable for the Board to find that he had problems with ringing in his ears during and since being exposed to construction equipment and aircraft noise while on active duty. See Davidson, supra; Owens, supra. However, the March 2018 and May 2018 VA examiners opined that the Veteran's tinnitus was not due to his military service. In this regard, because symptoms of tinnitus in and since service are observable by a lay person, because the examiners did not appear to consider the Veteran's competent and credible lay claims regarding in-service acoustic trauma due to his exposed to construction equipment and aircraft noise while in the USAF, and because the examiners appeared to rely solely on negative evidence, the Board finds that the Veteran's claim of having observable symptoms of tinnitus in and since service are just as probative as the VA examiner's opinion. See Davidson, supra; Owens, supra. Therefore, the Board finds that the evidence, both positive and negative, as to whether the Veteran had problems with tinnitus in and since service is at least in equipoise. Under such circumstances and granting the Veteran the benefit of any doubt in this matter, the Board concludes that he did. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, supra. (Continued on the next page) Accordingly, the Board finds that service connection for tinnitus is warranted. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.T. Werner, 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.