Citation Nr: 21071078 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 17-51 408 DATE: November 29, 2021 ORDER Service connection for tinnitus is granted. FINDING OF FACT Resolving all reasonable doubt in his favor, the Veteran's tinnitus is related to in-service noise exposure. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1111, 1112, 1131, 1132 1133 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1985 to February 1992. This case is before the Board of Veterans' Appeals (Board) on appeal from a December 2016 rating decision issued by a Department of Veterans Affairs (VA) regional office. Service Connection for Tinnitus The Veteran attributes his tinnitus to noise exposure aboard the USS Connole and the USS Julius A. Furer during service. He contends he had tinnitus before he left the Connole. See October 2017 VA Form 9. After careful review, the Board finds that service connection is warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the current disability and the disease or injury incurred or aggravated during service. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). Presumptive service connection may be established for certain chronic diseases, including organic diseases of the nervous system like tinnitus, which manifest to a compensable degree within one year of separation from active service. 38 C.F.R. §§ 3.307, 3.309. When a disease is not shown to be chronic during service or within the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. 38 C.F.R. § 3.303(b); Walker, 708 F.3d at 1338. In general, a veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time or where clear and unmistakable evidence demonstrates that the injury or disease preexisted and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.306(b). In order to rebut the presumption of sound condition (or soundness), VA must demonstrate by clear and unmistakable evidence both that the disease or injury existed prior to service, and that the disease or injury was not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1092 (Fed. Cir. 2004). The record here reflects that the Veteran is currently diagnosed with bilateral tinnitus. The question for the Board to decide is whether that tinnitus is related to service. There are two medical opinions on file concerning the etiology of the Veteran's disability. The first is a November 2016 VA opinion, which indicates that tinnitus was less likely than not caused by or the result of military noise exposure. Essentially, the 2016 VA examiner reasoned that the Veteran's tinnitus is a symptom of preexisting, non-service-connected hearing loss. The Board observes that tinnitus and hearing loss are two distinct disabilities for VA purposes. See 38 C.F.R. §§ 4.85, 4.87, Diagnostic Code 6260. In this case, the presumption of soundness attaches with respect to tinnitus as the Veteran's November 1984 enlistment examination does not document tinnitus upon entry into service. Because the record does not contain clear and unmistakable evidence of preexisting tinnitus, VA has not rebutted this presumption. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); see Quirin v. Shinski, 22 Vet. App. 390, 396 (2009) (clear and unmistakable evidence means that the evidence "cannot be misinterpreted and misunderstood, i.e., it is undebatable"). The second medical opinion comes from "Dr. T.C.," a private ear, nose and throat specialist. In October 2017, Dr. T.C. determined that the Veteran's tinnitus is more likely than not due to "significant" noise exposure in service, based on his reported history and significant worsening of hearing loss since separation. Overall, the Board finds that the two medical opinions above have relatively equal probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (an opinion is probative when it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data). As such, the benefit-of-the-doubt rule applies in this instance. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Accordingly, resolving all reasonable doubt in his favor, the Board finds that the Veteran's tinnitus is related to in-service noise exposure. Service connection is granted. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.Z. Wall, 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.