Citation Nr: 21071937 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 19-20 741 DATE: December 1, 2021 ORDER Entitlement to service connection for tinnitus is granted. REFERRED The issue of entitlement to service connection for a bilateral hearing loss disability was raised in a May 2021 statement and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his tinnitus at least as likely as not had its onset in service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty as a commissioned officer in the U.S. Navy from December 1987 to December 1991. This matter comes before the Board of Veterans' Appeals (Board) from a June 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans' Law Judge at a Board virtual hearing in April 2021. A transcript of the hearing has been associated with the claims file. Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110, 1131. 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disease shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in-service. 38 C.F.R. § 3.303(d). Service connection for chronic disease may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. In determining whether service connection is warranted for a disability, VA is responsible for determining 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for tinnitus The Veteran contends that service connection is warranted for his current tinnitus. The Veteran contends that his tinnitus is related to service and his in-service noise exposure. Service treatment records do not reflect reports of or treatment for tinnitus, and his ears were determined to be normal at his December 1991 separation examination. The Veteran attended a VA examination in June 2018. He reported tinnitus which began in service. He explained that he had not submitted a claim for compensation earlier, because he did not know compensation was available for tinnitus. The examiner concluded that the Veteran's MOA of Machinists Mate held a high probability of hazardous noise exposure. (The Veteran was not a machinist mate but rather a surface warfare officer and officer of the deck aboard ship.) The examiner stated that the Veteran's tinnitus was less likely than not related to military noise exposure. In her rationale, however, the examiner stated that the Veteran's reported onset of tinnitus was during service and he had a high probability of noise exposure. She went on to note that the Veteran's description of his tinnitus was consistent with medical literature in that hearing loss does not always accompany a tinnitus diagnosis when, "the person had noticed prominent tinnitus following daily noise exposures and the duration of this tinnitus gradually lengthened." Because the VA audiologist's rationale appears to contradict her finding that the Veteran's tinnitus was less likely than not related to military noise exposure, the Board will assume that the negative nexus finding was a clerical error. The Veteran submitted a private opinion in May 2021. The private audiologist stated that she believed the Veteran's tinnitus was more likely than not related to his in-service noise exposure. The Veteran testified during an April 2021 Board hearing to significant noise exposure in-service. He reported an onset of tinnitus in-service, with current continued symptoms. The Veteran is competent to describe his current symptoms, in-service events, and the occurrence of ongoing symptoms, and to this extent, these statements are credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Tinnitus is a condition that may be diagnosed by its unique and readily identifiable features, and the presence of the disorder is not a determination that is medical in nature and is capable of lay observation. Charles v. Principi, 16 Vet. App. 370 (2002). A layperson also is competent to testify as to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995). The Board further notes that tinnitus may be subject to service connection on a presumptive basis as an "organic disease of the nervous system" under 38 C.F.R. § 3.309(a) where there is evidence of in-service acoustic trauma and a continuity of symptomatology from service. See Fountain v. McDonald, 27 Vet. App. 258 (2015); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, the Veteran has reported onset of tinnitus during his service. As noted above, the Veteran is competent to diagnose tinnitus and he clearly reported tinnitus and its effects on his functioning during the June 2018 VA examination. Furthermore, there are two positive medical opinions of record, diagnosing the Veteran with tinnitus and relating tinnitus to the in-service noise exposure. The Board acknowledges the absence of reported tinnitus during service, but such evidence is not sufficient to overcome the above lay evidence. In light of the foregoing and affording the Veteran the benefit of the doubt, the Board concludes that entitlement to service connection for tinnitus is warranted. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Fitzgerald, 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.