Citation Nr: A21020107
Decision Date: 12/16/21	Archive Date: 12/16/21

DOCKET NO. 191120-49576
DATE: December 16, 2021

ORDER

Entitlement to service connection for tinnitus is granted.

FINDING OF FACT

Affording the Veteran, the benefit of the doubt, it is at least as likely as not that his current tinnitus onset in service.

CONCLUSION OF LAW

The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131 1154, 5100, 5102, 5103(a), 5103A, 5107, 5126; 38C.F.R. §§3.102, 3.159, 3.303, 3.304, 3.309, 3.326.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served in the Marine Corps from June 1967 to March 1970. 

The Veteran testified at a June 2021 videoconference hearing before the undersigned Veterans Law Judge.  A hearing transcript is of record

Service Connection

Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, 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, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995).

Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Moreover, for such chronic diseases, an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309 (a); see 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2014). Additionally, evidence of continuous symptoms since active duty is a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303 (a).

In cases where a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C. § 1154 (b) and its implementing regulation, 38 C.F.R. § 3.304 (d), are applicable. This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence. If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (d). To establish service connection, however, there must be medical evidence of a nexus between the current disability and the combat injury. See Dalton v. Nicholson, 21 Vet. App. 23, 36-37 (2007); Libertine v. Brown, 9 Vet. App. 521, 523-24 (1996). In such cases, not only is the combat injury presumed, but so are the consequences of that injury at least in service. See Reeves v Shinseki, 682 F.3d 988 (Fed. Cir. 2012).

1. Entitlement to service connection for tinnitus

The Veteran seeks service connection for tinnitus due excessive noise during combat. Because the combat presumption applies, and because the Veteran has presented competent and credible evidence of tinnitus since service, entitlement to service connection for tinnitus is granted.

First, the Board finds that the Veteran has a current diagnosis of tinnitus. The Board notes the lack of complaints for tinnitus in the Veteran's service treatment records and February 1970 separation examination. However, during his June 2021 Board hearing, the Veteran testified that he sustained excessive noise during combat service due to 105 Howitzers and fighting outside in the field. Additionally, he testified that he did not wear hearing protection. Further, the Veteran provided two buddy statements from his wife and friend that support the Veterans contentions that he has experienced tinnitus since his military service.  

The Board notes the negative opinions provided by the December 2018 and October 2019 VA examiners who opined that the Veterans tinnitus was less likely than not related to his military service as the Veteran stated an onset date of 2011, well past the date of his service. However, as a combat veteran, the Veteran's testimony and buddy statements will be accepted as sufficient evidence of an injury in service. 

Moreover, the Veteran has presented competent and credible evidence that his tinnitus has been present in some form, continuously since service. Because the Veteran has presented competent and credible evidence of tinnitus in and since service, entitlement to service connection for tinnitus is granted.

 

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.

 

 

B.T. KNOPE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Vample, Erica