Citation Nr: 21068585 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 18-02 726 DATE: November 10, 2021 ORDER Entitlement to service connection for tinnitus is granted. FINDING OF FACT The Veteran has a current diagnosis of tinnitus which has been continually present since his military service. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385, 4.85. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Marines Corps from December 1964 to November 1990 and from March 1, to August 26, 2003. He also served in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claims were remanded by the Board in an April 2019 decision for further development. The Board finds that its prior directives were not substantially complied with as the VA medical opinion did not adequately address secondary service connection. See Stegall v. West, 11 Vet. App. 268 (1998). Nevertheless, considering the favorable disposition granted herein, the Board finds that the Veteran is not prejudiced by the RO's failure to substantially comply with the Board's April 2019 remand directive. See Bernard v. Brown, 4 Vet. App. 384 (1993). Entitlement to service connection for tinnitus The Veteran contends that he was constantly exposed to extreme, loud noises during his service in the Marines, and his tinnitus began in service and still exists today. See April 2017 Statement in Support of Claim. Generally, service connection may be established if the evidence demonstrates that a current disability resulted from a disease or injury incurred in or aggravated by active duty service. 38 C.F.R. § 3.303. To that end, service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to the period of service, establishes the disease was incurred during active duty service. 38 C.F.R. § 3.303 (d). In order to prove service connection, there must be competent and credible evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the current disability and the in-service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as tinnitus, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309 (a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303 (b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary 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). The Veteran has a current diagnosis of tinnitus as evidenced by the August 2017 VA audiological examination. Tinnitus is an enumerated condition under 38 C.F.R. § 3.309 (a); Walker, 708 F.3d 1331. The Board has considered the November 2019 VA addendum medical opinion where the VA examiner opined that the Veteran's August 2017 description of tinnitus is not consistent with chronic pathological tinnitus and is more consistent with normal transient noise. During the August 2017 VA examination, the Veteran described experiencing tinnitus about once per month lasting about 15 minutes. The examiner cited to 1992 findings by Dauman and Tyler who suggested that noise must last at least five minutes and occur at least two times per week to meet the criteria of tinnitus. However, pursuant to DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1725 (27th ed. 1988), tinnitus is "noise in the ears such as ringing, buzzing, roaring, or clicking." See also YT v. Brown, 9 Vet. App. 195, 196 (1996). During the August 2017 VA examination, the Veteran also contended that his tinnitus is like a ringing and clicking and sometimes bothers him when he is sleeping. The Board finds that the Veteran is competent to report such symptoms as ringing and clicking in his ear that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Consequently, the Board concludes that the Veteran experiences tinnitus, which is a chronic disease pursuant to 38 C.F.R. § 3.309 (a). Service treatment records include the Veteran's October 1990 Report of Medical History for retirement. The Veteran checked "yes" to hearing loss. The reviewing official noted that the Veteran reported mild hearing loss in 1966 due to a stroke of bullets next to his left ear which manifested with a ring and no hearing for 3 days. The official further noted that the Veteran did not receive any treatment and fully recovered. His service personnel records confirm that the Veteran participated in combat operations in Vietnam from August 1965 to July 1966 and from April 1971 to May 1971. Further, the Veteran was awarded a Combat Action Badge along with many other decorations for his service in Vietnam. See DD-214. Therefore, the Board finds that the Veteran's service is consistent with noise exposure and that he experienced tinnitus during his active service. 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (d). In an April 2017 statement in support of claim and the October 2017 notice of disagreement, the Veteran stated that his tinnitus began in service and still exists today. During the August 2017 VA audiological VA examination, the examiner opined that the Veteran's tinnitus is less likely than not caused by or the result of military noise exposure. The rationale provided was that the Veteran denied tinnitus during his post-deployment health assessment in 2003. Additionally, the examiner noted that the Veteran stated that his tinnitus started 3 to 4 years ago, and she opined that noise induced tinnitus would occur at the time of exposure, not years later. In a November 2019 addendum opinion, the VA examiner again cited to the Veteran's denial of tinnitus at separation in 2003 for her rationale for finding that his tinnitus is less likely than not caused by or related to in-service noise exposure. The Board gives minimal probative value to the VA examiners' opinions offered in August 2017 and November 2019. The United States Court of Appeals for Veterans Claims (Court) has held that the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). The Court also has held that the absence of contemporaneous records is insufficient rationale for a medical nexus opinion. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The VA examiners rested their opinions on the Veteran's failure to report tinnitus in 2003 at his separation from his 6-month period of active service. More importantly, the examiner did not thoroughly consider the Veteran's contentions, which are included in the claims file, that he began to experience tinnitus in service and continued experiencing hearing problems after separation. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Furthermore, the examiner failed to consider the Veteran's documented complaint of tinnitus included on his October 1990 Report of Medical History. In sum, the Veteran credibly contends that he incurred tinnitus during active service due to noise exposure. The Board has conceded that the Veteran was likely exposed to excessive noise during service due to his participation in combat operations in Vietnam. The Veteran has competently reported symptoms of tinnitus including ringing and clicking. Additionally, the Board has found that the only negative medical opinions of record dated in August 2017 and November 2019 addressing the contended etiological relationship between tinnitus and active service are not probative. Therefore, the Board presumes that the Veteran's tinnitus was incurred in-service based on the continuity of reported symptoms of ringing and clicking. Accordingly, entitlement to service connection for tinnitus is warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Hartford, 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.