Citation Nr: A21019015 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 190911-30086 DATE: November 30, 2021 ORDER Entitlement to service connection for bilateral tinnitus is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his tinnitus is at least as likely as not related to his military service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral tinnitus have been met. U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 20.302. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from September 1976 to September 1979. This matter comes before the Board of Veterans' Appeals ("Board") on appeal from a September 2018 rating decision of the Department of Veterans Affairs ("VA") Regional Office ("RO"). The Veteran testified at a May 2021 Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In the September 2019 VA Form 10182, Decision Review Request: Board Appeal, the Veteran chose to opt-in the Appeals Modernization Act (AMA) System from the August 2019 statement of the case (SOC) and elected the Hearing docket. Therefore, the Board may only consider the evidence of record at the time of the August 2019 SOC, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). Entitlement to service connection for bilateral tinnitus. At the January 2021 Board hearing, the Veteran testified that he was multi-channel radio operator and was exposed to loud noises every day for eight hours continuously. In 1977 he began hearing squelching, hissing, and ringing sounds. When he was out in the field, he would not pay attention, however, the ringing was obvious during nights. The Veteran's representative argued that even though the Veteran had been suffering with tinnitus for many years, the claim was denied because the first time a diagnosis of tinnitus noted by a clinician was in 2018. The Veteran further testified that after his military service he had been working as a painter in a quiet environment. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) 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). In determining whether service connection is warranted for a disability, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990); 38 C.F.R. § 3.102. Thus, the question for the Board is whether the Veteran has a current disability of tinnitus that began during service or is at least as likely as not related to an in-service injury, event, or disease. The existence of current disability of tinnitus is not in question. The diagnosis of recurrent tinnitus was noted by the examiner during the September 2018 VA examination. Regarding the in-service incurrence of a disease, injury, or event, the Veteran testified at the May 2021 Board hearing that he was exposed to loud noise during his active service while working as a multi-channel operator. The Veteran's military personnel record confirms that his military occupational specialty (MOS) was communication equipment mechanic. Also, the RO has conceded the Veteran's in-service exposure to excessive noise in the August 2019 SOC. Hence, there is credible evidence demonstrating the in-service noise exposure. Lastly, regarding the causal relationship between the Veteran's diagnosed tinnitus and in-service noise exposure, the Veteran was afforded a VA examination in September 2018, during which the Veteran reported that he noticed tinnitus for a long time, but it was milder, and now it is bothersome. The examiner opined that the Veteran's tinnitus is less likely than not related to the Veteran's military noise exposure. As a rationale, the examiner stated that the service treatment records indicate no significant permanent shift in hearing thresholds from entrance to separation, and there is no in-service complaint of tinnitus. Nevertheless, the Board finds the September 2018 VA opinion inadequate because the examiner did not consider the Veteran's statements of noticing tinnitus for a long time and based negative nexus opinion solely on the lack of contemporaneous treatment records. Whereas the lack of contemporaneous treatment records does not preclude granting of service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim). The Board notes that the June 2018 VA audiology note reflects the Veteran has chronic constant bilateral tinnitus, which has become bothersome recently. Also, a separate June 2018 VA treatment record has a notation "tinnitus handicap inventory score was 74, which is considered to be in the catastrophic category." The Board also notes that tinnitus is a disorder that is readily observable by laypersons and does not require medical expertise to establish its existence. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). Furthermore, while the Veteran's service treatment records are negative for complaints of tinnitus, he is nevertheless competent to report a history of tinnitus that began in service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); 38 C.F.R. § 3.159(a)(2). (Continued on the next page) In its capacity as a finder of fact, the Board finds the Veteran is credible as to his reports of the onset, recurrence, and frequency of tinnitus symptoms. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Thus, the Board finds that the Veteran's competent and credible lay statements, including the May 2021 testimony under oath are sufficient to establish a nexus between his active service and tinnitus and therefore service connection for tinnitus is warranted. 38 C.F.R. § 3.303(a). Thereby, following a review of the evidence of record, and after resolving reasonable doubt in favor of the Veteran, the Board concludes that service connection for tinnitus is warranted. The evidence of record reflects current findings of tinnitus. The Veteran has asserted that he developed tinnitus during service and has experienced it ever since. The Board has found his statements competent and credible. Therefore, entitlement to service connection for bilateral tinnitus is granted. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tariq, Nadeem, 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.