Citation Nr: 21068956 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 18-07 084 DATE: November 17, 2021 ORDER Service connection for tinnitus is granted. FINDING OF FACT With all reasonable doubt resolved in the Veteran's favor, his tinnitus cannot be satisfactorily disassociated from his in-service noise exposure. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from February 1965 to October 1968. This matter is before the Board of Veterans' Appeals (the Board) on appeal from a March 2012 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The rating decision, inter alia, denied service connection for tinnitus. The Veteran's Notice of Disagreement (NOD) was received in January 2013. Then, the file contains a June 2017 notation that a Statement of the Case was issued in November 2014 but that the Veteran never received it. However, the file does not contain a November 2014 Statement of the Case and there is no indication that one was issued that month. Thus, it does not appear that a Statement of the Case was issued in November 2014. However, a Statement of the Case was issued in January 2018, and the Veteran's VA Form 9, substantive appeal to the Board was received in February 2018. The Veteran was scheduled for a Board hearing before a Veterans Law Judge (VLJ). However, the Veteran subsequently submitted a written request to cancel the hearing and proceed with adjudication. Accordingly, the Veteran's hearing request is deemed withdrawn. Entitlement to service connection for tinnitus. In his February 2012 statement, the Veteran indicates that he has had tinnitus since service and that he believes that is related to in-service noise exposure. The Veteran further indicated that his military occupation specialty (MOS) was in Radio Relay equipment repair. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). "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." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases may also be established based upon a legal "presumption" by showing that the disease manifested to a degree of at least 10 percent within one year from the date of separation from service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Tinnitus is capable of lay observation, and the Veteran has offered competent, credible statements that he experiences tinnitus. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"). During the March 2012 VA examination, the Veteran reported that he had tinnitus. Thus, the Veteran has met the current disability requirement. Additionally, the Veteran reported that he was subject to noise exposure during active duty due to his MOS being in Radio Relay. The Veteran's DD 214 indicates that the Veteran completed training for Radio Relay Equipment Repair and Records Management. Thus, the Veteran's DD 214 is consistent with his contentions regarding noise exposure he experienced in service. His statements have been found competent, credible, and consistent with the circumstances of his service. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). Therefore, the Veteran has met the in-service injury or event requirement. Hence, the dispositive issue is whether tinnitus is related to the in-service noise exposure. During a March 2012 VA examination, it was noted that the Veteran did not have hearing loss that met the criteria to be considered a disability for VA purposes. With respect to tinnitus, it was noted that the Veteran had longstanding tinnitus in the left ear. The VA examiner noted that the Veteran had a diagnosis of clinical hearing loss, and that his tinnitus is at least as likely as not a symptom associated with hearing loss. The VA examiner concluded that it is less likely than not that the Veteran's tinnitus is related to military noise exposure. For rationale, the VA examiner noted that the Veteran's hearing loss is less likely than not related to military noise exposure, and that tinnitus is secondary to hearing loss, and is thus less likely than not related to military service. However, the March 2012 VA medical opinion is not afforded probative value. The VA examiner concluded that the Veteran did not have hearing loss that met the criteria to be considered a disability for VA purposes, but concluded that the Veteran's tinnitus is related to his hearing loss and not his service. This is internally inconsistent. Moreover, the Veteran's February 2012 statement indicates that he has had tinnitus since service, and the VA examiner did not address these contentions. Thus, with respect to a nexus, the record contains the Veteran's competent and credible statements that he has had tinnitus since service, which he relates to in-service noise exposure. Although the March 2012 VA opinion weighs against the claim, it is not afforded probative value because it does not contain adequate rationale for the conclusions reached. The Veteran's hearing loss did not rise to a level that could be considered a disability for VA purposes; however, that should not necessarily exclude service connection for tinnitus just because tinnitus is found to be related to the hearing loss. Thus, the evidence is at least in relative equipoise as to whether the Veteran's tinnitus had its onset in service following noise exposure. With all reasonable doubt resolved in the Veteran's favor, his February 2012 statement is afforded probative value and it is at least as likely as not that tinnitus had its onset in service. As the March 2012 VA examiner based the negative opinion on the premise that the Veteran's tinnitus is related to his hearing loss, while also noting that his hearing loss did not meet the VA criteria to be considered a disability, that opinion is not afforded probative value. The VA examiner likewise did not take into consideration the Veteran's statements that tinnitus began in service. As noted above, tinnitus is an observable symptom capable of lay observation. The Veteran testified that he had ringing in his ears since service, following in-service noise exposure. "[L]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). As noted above, the Board has found the Veteran's statements in this regard to be credible. Consequently, this lay evidence of a nexus between the Veteran's current tinnitus and his military service based on in-service onset, and continuous symptoms ever since, is entitled to substantial probative weight. The evidence is therefore at least evenly balanced as to whether the Veteran's tinnitus is related to his in-service noise exposure. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for tinnitus is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Buchanan, 451 F.3d at 1335 ("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself"). L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kuksova, Kseniya 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.