Citation Nr: 21072301 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 17-04 728A DATE: December 2, 2021 ORDER Entitlement to service connection for tinnitus is granted. FINDING OF FACT The evidence is at least in relative equipoise as to whether the Veteran's current bilateral tinnitus is related to his in-service acoustic trauma. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. § §§ 1110, 1131, 5107; 38 C.F.R. § §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active-duty service in the United States Army from October 1987 to October 1990. In July 2021, the Board remanded the claim on appeal for further development and adjudication. The Board finds that there was substantial compliance with its July 2021 remand directives. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Nonetheless, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to an internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 141 (1999). Furthermore, the Board notes that in the July 2021 decision and remand, the Board denied the Veteran's petition to reopen his claim for entitlement to service connection for a right shoulder disability. As such the claim is not on appeal and therefore the Board does not have jurisdiction over it at this time. In addition, in an October 2021 rating decision, the RO granted the Veteran's claims for service connection for right knee strain with degenerative arthritis, and assigned a 40 percent disability rating; for right knee instability and assigned a 10 percent disability rating; for left knee chondromalacia with meniscal tear and degenerative arthritis and assigned a 40 percent disability rating; for left knee scar due to meniscectomy and assigned a noncompensable rating; and for left knee instability and assigned a 10 percent disability rating. The RO made all of the Veteran's assigned ratings effective February 25, 2013. As such are considered full grants of the benefits sought on appeal, the Veteran's claims for service connection for left and right knee disabilities are no longer on appeal and therefore the Board does not have jurisdiction over them at this time. Entitlement to service connection for tinnitus is granted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § §§ 1110, 1131; 38 C.F.R. § § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § § 3.303 (d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. § §§ 1101, 1112, 1137; 38 C.F.R. § §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § § 3.309 (a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § § 3.303 (b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § § 5107 (b); 38 C.F.R. § § 3.102. When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran contends that he suffers from tinnitus as a result of his active-duty service. Specifically, he contends that he was exposed to loud noise from M1 tank fire as well as engine noise. Furthermore, he contends that his tinnitus began in service and has continued since such time. See January 2017 VA Form 9. At the outset, the Board notes that tinnitus is a simple disease that is observable by lay persons. Moreover, it is a condition that is diagnosed based solely on subjective reports. Therefore, the Veteran is perfectly competent to both diagnose it and speak to its onset, course, and progression. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). Crucially, the Board has found no reason to question the veracity of his statements endorsing tinnitus either now or in service. Consequently, such statements are competent, credible, and probative evidence indicating that the Veteran has a diagnosis of tinnitus that also manifested during service. As such, the presumption under 38 U.S.C. § § 1112 for chronic diseases applies, as tinnitus is considered an organic disease of the nervous system, and presumptive service connection for tinnitus is warranted. In so finding, the Board is cognizant of the negative medical opinion in the record. However, it is critical to note that the August 2021 VA opinion did not adequately consider the Veteran's own competent statements regarding the onset and course of his tinnitus in service. Moreover, the VA examiner seemed to base her opinion largely on the rationale that there were no complaints of tinnitus in the Veteran's service records. However, the Board finds such rationale to be inadequate and therefore affords it little, if any, probative weight. Furthermore, the Board notes that the Veteran provided a positive private nexus opinion in November 2018. The examiner found that the Veteran's tinnitus was due to his in-service acoustic trauma and noted a thorough consideration of not only the Veteran's service records but also the Veteran's subjective reports. Therefore, the Board finds the November 2018 opinion probative in this matter. Consequently, the Board finds the evidence in the record is at least in relative equipoise and, resolving all remaining reasonable doubt in the Veteran's favor, service connection for tinnitus must be granted. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Unger, 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.