Citation Nr: 21068706 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 17-29 647 DATE: November 12, 2021 ORDER Entitlement to service connection for tinnitus is granted. FINDING OF FACT The preponderance of the evidence indicates that the Veteran's tinnitus began during or as a result of his active service. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 5107; 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, including from March 2003 to March 2004, from February 2006 to May 2008, from May 2009 to May 2011, and from July 2012 to August 2013. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision of a Department of Veteran's Affairs (VA) Regional Office (RO). The Veteran asserts that his tinnitus began during or as a result of his active service. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The evidence must show (1) the existence of a current disability, (2) an 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). Certain chronic diseases will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1991). Tinnitus is a disease which is capable of lay observation. Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). Tinnitus is considered an organic disease of the nervous system and is, therefore, a chronic disease for VA purposes. 38 C.F.R. § 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 27172 (2015). Service connection for tinnitus may be awarded based on continuity of symptomatology. The Veteran has reported that he currently has tinnitus, which he is competent to report. Further, the record confirms the Veteran has a diagnosis. See November 2015 VA examination. Thus, a current disability is shown. The Veteran left active service in August 2013 and filed a claim for service connection in May 2015. See July 2008 DD Form 214 and May 2015 claim for service connection. The Veteran's July 2008 DD Form 214 reflects that his Military Occupational Specialty (MOS) was Combat Engineer, which has been conceded to have a moderate to high probability of noise exposure during military service. Accordingly, potentially hazardous noise exposure during service is conceded. The Veteran's service treatment records (STRs) are negative for complaints, treatment, or diagnosis of hearing loss or tinnitus. During the Veteran's November 2015 VA examination for hearing loss and tinnitus, he experienced tinnitus but was negative for hearing loss. Audiometric testing revealed normal hearing in both ears. The Veteran reported that he had experienced intermittent tinnitus for the past 9 years. The first documented treatment for tinnitus was in June 2015, when the Veteran indicated in a post-deployment health reassessment that he was bothered by tinnitus a little. The examiner opined that his tinnitus was less likely than not related to his active service. The examiner's rationale noted that the Veteran had normal hearing throughout service and at the time of the examination. As there was no evidence of hearing loss due to service, there was no basis to conclude that his tinnitus was caused by in-service noise exposure. During the Veteran's May 2017 Form 9 statement, he asserted that his extensive time as a combat engineer, including two tours in Iraq, exposed him to hazardous noise, and he had no history of significant noise exposure during post-service civilian life. In a November 2017 statement in support of his claim, the Veteran argued that while noise-induced tinnitus will usually be accompanied by hearing loss, that was not always the case. During the Veteran's August 2021 VA examination for hearing loss and tinnitus, he reported experiencing tinnitus since 2006. The examiner found his tinnitus was at least as likely as not due to his active service. The examiner's rationale stated that his MOS had a high probability of hazardous noise exposure, the Veteran reported intermittent tinnitus since service, and he began reporting tinnitus relatively soon after leaving active service. In an October 2021 Appellate Brief, the Veteran's representative argued that the Veteran began experiencing intermittent tinnitus during service as a result of conceded noise exposure, and he reported tinnitus relatively soon after active service. The Board finds the preponderance of the evidence is in favor of the Veteran's claim. While the Veteran's STRs are negative for tinnitus, the Veteran has stated that his tinnitus was intermittent during service and began troubling him during civilian life. Additionally, although the November 2015 VA examiner concluded that his tinnitus was less likely than not related to service, the August 2021 VA examiner concluded that his tinnitus was at least as likely as not due to service. The Board finds the August 2021 VA examiner's opinion more consistent with the evidence of record, which reflects service in an MOS with a high probability of noise exposure and lay reports of intermittent tinnitus during service. Based on these facts, the Board finds the preponderance of the evidence is in favor of the Veteran's claim for service connection for tinnitus, and the claim is granted. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Hicks, 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.