Citation Nr: 21072401 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 17-65 393 DATE: December 3, 2021 ORDER Entitlement to service connection for tinnitus is granted. FINDING OF FACT Giving the Veteran the benefit of any reasonable doubt, the evidence is sufficient to show that is tinnitus had its onset during his military service or is otherwise related to his military service. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Air Force from March 1987 to November 1988. This matter comes to the Board of Veterans' Appeals (Board) on the Veteran's appeal of the October 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) which denied his claim for entitlement to service connection for tinnitus. The Veteran and his representative appeared for a videoconference Board hearing with the undersigned Veteran's Law Judge (VLJ) in October 2020 (Board Hearing). A copy of the transcript for that hearing has been attached to his file. 1. Entitlement to service connection for tinnitus. The Veteran contends that his tinnitus is a result of hazardous noise exposure during his military service. Service connection To establish service connection for a disability, the evidence 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Alternatively, service connection may be granted on a presumptive basis for certain limited and specifically designated chronic diseases. 38 U.S.C. § 1110, 1111, 1112, 1113, 1131, 1132, 1133, 1137; 38 C.F.R. §§ 3.303(a), 3.307(a)(3), 3.309(a). A chronic disease may be presumptively service connected if it is shown as such in service or within the one-year presumptive period under 38 C.F.R. § 3.307(a)(3) and it manifested again thereafter, if it is shown to have manifested to a compensable degree within one year of separation from service. Tinnitus has been recognized as an organic disease of the nervous system for VA compensation purposes. 38 C.F.R. § 3.309(a). As such, sensorineural hearing loss and tinnitus are disabilities which may be presumed to have been incurred in service if manifested to a compensable degree within one year after discharge from service or, if the evidence of record shows a continuity of symptomatology thereafter. Id.; see also, Fountain v. McDonald, 27 Vet. App. 258 (2015). When a disease listed 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, 708 F.3d 1331 (Fed. Cir. 2013). Tinnitus is "a noise in the ears such as ringing, buzzing, roaring, or clicking." Dorland's Illustrated Medical Dictionary 1930 (32nd ed. 2012); see also, YT v Brown, 9 Vet. App. 195, 196 (1996) ("Tinnitus is a noise in the ears, such as ringing, buzzing, roaring, or clicking.") Unlike most medical conditions, the symptoms of tinnitus are within the competence of a lay person to report, including for use as a basis to establish the nexus between the disability and military service. Charles v. Principi, 16 Vet. App. 370, 374 (2002); see Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (Lay evidence can by competent and sufficient to establish a diagnosis if the layperson is competent to identify the medical condition.). However, there still must be probative evidence establishing the Veteran has tinnitus and that it is attributable it to qualifying military service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993). The Board concedes that the Veteran has a current diagnosis of bilateral tinnitus. See VA Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ), July 2016. The Veteran's medical service treatment records (STRs) do not indicate any reference to complaints of, treatment for, or diagnosis of any tinnitus related condition. However, the Board notes that he was discharged early due to a different medical related issue, and his STRs do not contain many treatment records during his period of service. While he did indicate in his April 1988 separation physical that he had ear problems, he listed this as having previously had tubes and other operations for the correction of his childhood hearing loss. He did not state he had ringing in his ears or other signs of tinnitus. Additional notes were added by medical evaluators which provided more detailed information on this condition and his continued hearing loss. In his July 2016 VA hearing and tinnitus examination, he was noted to have sensorineural hearing loss in the 500-4000 Hz range for both ears. He was also noted to have bilateral tinnitus, but the VA examiner opined that this was less likely than not (less than 50 percent) caused in or related to his military service due to the lack of contemporaneous documentation to support the claim in his STRs. During an October 2016 VA consultation for hearing aids, the Veteran asked about his tinnitus which he stated he has had since service. He stated that he has learned to live with it despite it varying in intensity, is worse in his left ear, and that he has to sleep with a fan on to distract him from the ringing in his ears. The Veteran has stated that his bilateral tinnitus began in 1988 while he was still in service, due to constant ringing in his ears. See Hearing Transcript, pages 2 3; see also VA Tinnitus DBQ, July 2016, VA Hearing Aid consultation, October 2016. He also has stated that during training for and as part of his duties as a security police officer he was exposed to hazardous noise levels from small arms and M60 machine gun firing, explosions from hand grenades, and from jet engines while he was performing his duties on the flight line for which he was very often not provided hearing protection. See Hearing Transcript, page 3. He also stated that the ringing in his ears has been constant since that time. He further denied that his post-service employment in law enforcement as a 911 dispatcher and corrections officer, and later as a private investigator and in sales, caused him exposure to hazardous noises. His DD 214 confirms his military occupational specialty (MOS) as a security police office, his completion of basic training and as a M60 specialist, as well as his award as a small arms marksman. In support of his claim, the Veteran, through his representative, submitted an October 2017 letter from his audiologist, Dr. P.B., Au.D., who stated the Veteran has permanent hearing loss in both ears caused by nerve damage, which is consistent with the Veteran's reports of hazardous noise exposure during military service, his sensorineural hearing loss, and his ringing in his ears. However, Dr. P.B., stated this to be a "reasonable" assumption, and does not state his opinion in terms of more or less likely than not, greater or less than 50 percent likely, which is the standard language utilized by VA. Analysis The Board finds the Veteran to be competent as to his statements made concerning his relevant symptoms, his circumstances of service, his medical history, and how they relate to his claim for tinnitus. See Jandreau, 492 F.3d at 1377, 38 C.F.R. § 3.159 (a); see also Charles, 16 Vet. App at, 374-75. As there is no objective test to determine the presence or severity of tinnitus, the Veteran's lay statements are considered highly probative. His statements are not inconsistent with the rest of the evidence of record. Second, the Board does not find the opinion of the VA examiner for the July 2016 VA examination to be adequate as it is based primarily on the lack of contemporaneous recorded evidence and does not adequately address the other evidence of record, in particular the Veteran's own statements. The absence of contemporaneous records does not preclude granting 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); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). Finally, the Veteran's testimony is that his ringing in his ears began in service, or at the very least, immediately thereafter, and has been constant since. He has sensorineural hearing loss in both hears. Therefore, the Board also finds that he must be given the benefit of the doubt that this condition has manifested to a compensable degree within a year of his separation from service and is a chronic condition for which he is entitle to service connection. 38 C.F.R. §§ 3.307, 3.309; Fountain, 27 Vet. App. 258. The Board finds that the evidence is at least in relative equipoise that his tinnitus began in or as a result of his military service. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The claim for entitlement to service connection for tinnitus is granted. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Bannach 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.