Citation Nr: A21020404 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 191121-154003 DATE: December 22, 2021 ORDER Service connection for tinnitus is denied. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his tinnitus is at least as likely as not related to active service. CONCLUSION OF LAW The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active service from November 1966 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2019 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran selected the Direct Review lane without a Board hearing when he opted into the Appeals Modernization Act (AMA) review system by submitting a VA Form 10182 (Decision Review Request: Board (Notice of Disagreement)). Accordingly, the Board will consider the evidence of record at the time of the July 2019 rating decision. Favorable Findings in the July 2019 rating decision were noted as the Veteran has a current diagnosis of tinnitus; therefore, the Board is bound by this favorable finding and sees no reason to disturb it. See 38 U.S.C. § 5104A; 38 C.F.R. § 3.104(c). Entitlement to service connection for tinnitus Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). As a general matter, establishing service connection requires competent evidence of (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). The Veteran contends that his tinnitus is related to service. Specifically, he reported that his exposure to noise from electronics, firing range, and aircraft caused his tinnitus which had been present since separation from active service. A review of the Veteran's service treatment records shows that the Veteran was not assessed with tinnitus nor did he report symptoms of tinnitus. A March 2019 VA audiology treatment record showed that the was assessed with intermittent tinnitus. The audiologist noted that the Veteran reported tinnitus onset two years prior. A June 2019 VA audiology examination report shows that the Veteran reported ringing and blowing noise in the ears. The examiner, after a review of the claims file and examination of the Veteran, opined that it was less likely than not that tinnitus was caused by or a result of military noise exposure. The examiner noted the Veteran's history of military noise exposure from electronics, firing range, and when traveling by aircraft. The examiner reported that despite reported noise exposure, the Veteran separation examination dated August 1969 showed audiometric thresholds were within the range of normal limits. The examiner noted a March 2019 VA treatment record where the Veteran reported onset of tinnitus two years prior, and therefore the Veteran provided inconsistent statements regarding onset. The examiner then cited to the 2006 study by the Institute of Medicine (IOM) Noise and Military Service- Implications for Hearing Loss and Tinnitus, which concluded that prolonged delay in onset of noise-induced hearing loss was "unlikely." The examiner then cited to occupational noise exposure and that there was no evidence to conclude that the current tinnitus was caused by or a result of the Veteran's active service. An August 2019 VA Form 10182 Notice of Disagreement showed that the Veteran submitted a statement that he had experienced tinnitus at separation from service but did not know that it was a disability and had he been made aware of the condition he would have reported the symptom on separation. Additionally, Veteran reported that he sought treatment in March 2019 for tinnitus, he reported that tinnitus had worsened in the last two years, not that the condition had onset in the last two years. A November 2019 VA Form 10182 Notice of Disagreement showed that the Veteran, again, reiterated that he experienced tinnitus with ringing of the ears during active service. For the following reasons, the Board finds that the Veteran's current diagnoses of tinnitus and the evidence is at least in equipoise as to whether his tinnitus is related to noise exposure in service. As noted above, a current disabilty of tinnitus has been diagnosed. The Veteran's DD 214 reflects that his military occupation specialty (MOS) was as a fixed plant carrier repairman and he described his duties exposed him to electronics noise. He also reported noise exposure from firing ranges and from aircraft. As such, the Board finds that noise exposure has been established as consistent with the places, types, and circumstances of his military service. 38 C.F.R. § 3.303(a). Having established a current disability and in-service noise exposure to acoustic trauma, the remaining question is whether the Veteran's current tinnitus is due to noise exposure during military service. As noted above, the Veteran was afforded a VA audiological examination in June 2019. The examiner opined that the Veteran's tinnitus was less likely than not related to his military service. The rationale was that a review of service treatment records showed no reports of tinnitus and that in March 2019 the Veteran provided inconsistent statements regarding onset on tinnitus. Specifically, that the Veteran reported onset of tinnitus two years prior. However, the Veteran has provided a statement that he communicated to the VA audiologist in March 2019, the tinnitus had worsened in the last two years, not that the condition had onset in the last two years. The Veteran has reported that he has experienced tinnitus since separation from service. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, reasonable doubt shall be resolved in favor of the claimant. 38 U.S.C. § 5107(b). Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102 (2020). An accurate determination of etiology is not a condition precedent to granting service connection; nor is definite etiology or obvious etiology. Alemany v. Brown, 9 Vet. App. 518 (1996); 38 U.S.C. § 5107(b). Further, a Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. The Board is aware of the conflicting evidence as to whether the Veteran's tinnitus is related to active service. However, the Board concludes that in this case, as it now stands, the evidence of record is at least in relative equipoise on this material issue. 38 U.S.C. § 5107(b). The Board finds that the VA examiner's opinion of record is based upon, in part, the March 2019 VA treatment record which notated the Veteran's reports on onset two year prior which would be 2017. However, the Veteran has provided competent and credible statements that during the March 2019 audiological visit he reported increased symptomatology in the last two years, not onset, which he maintained was during active service. The Board finds no reasons to doubt the credibility of the Veteran. Further, the Veteran is competent to establish features and symptoms observable through his senses such as tinnitus. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). Therefore, as the Veteran has competently and credibly reported an onset of tinnitus while in service with symptoms continuing through the present. As the reasonable doubt created by this relative equipoise in the evidence is resolved in favor of the Veteran, the Board finds that entitlement to service connection for tinnitus is warranted. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dworkin, 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.