Citation Nr: 21005628 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 17-55 135 DATE: February 2, 2021 ORDER Service connection for tinnitus is granted. FINDING OF FACT It is at least as likely as not that the Veteran’s tinnitus developed as a result of active service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for an award of service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from April 1964 to April 1966. He also had service in the United States Naval Reserve. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri. In April 2019, the Veteran testified at a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. In August 2019, the Board, in pertinent part, reopened the previously denied tinnitus claim and remanded the underlying claim for service connection to the agency of original jurisdiction (AOJ) for additional development. There has been at least substantial compliance with the Board's remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the matter of the Veteran’s entitlement to service connection for hearing loss was previously on appeal. However, in November 2020, after taking further action, the AOJ granted service connection and a 100 percent rating for bilateral hearing loss, effective June 12, 2015. The Veteran has not disagreed with the rating or effective date. As such, that issue is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where service connection is granted during the pendency of an appeal, a second notice of disagreement must thereafter be timely filed in order to initiate appellate review of “downstream” issues such as the rating and effective date). Entitlement to service connection for tinnitus The Veteran is seeking service connection for tinnitus. In pertinent part, he has contended, to include at the April 2019 Board hearing, that this disability and his hearing loss are due to in-service noise exposure. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). If a Veteran serves 90 days or more of active, continuous service after December 31, 1946, and manifests certain chronic diseases, such as tinnitus, to a degree of 10 percent or more during the one-year period following his separation from that service, service connection for the condition may be established on a presumptive basis, notwithstanding that there is no in-service record of the disorder. See 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309; Fountain v. McDonald, 27 Vet. App. 258 (2015). Service connection may also be established under 38 C.F.R. § 3.303 (b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307(i) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In adjudicating the Veteran's claim, the Board observes that nothing of record shows that he has the requisite knowledge, skill, experience, training, or education to render medical opinions. Consequently, his contentions cannot constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). However, in making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of observable symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Turning to the merits of the Veteran's claim, the Board notes that there is no dispute that he has tinnitus. VA examinations dated in December 2012 and November 2020, as well as a March 2016 private audiologist’s report, clearly reflect a diagnosis of tinnitus. Nor is there any real dispute that the Veteran was exposed to hazardous noise during service. His service records reflect that his military occupational specialty (MOS) was Aircraft-Engine Mechanic. Exposure to excessive noise is wholly consistent with the circumstances and conditions of his service. Moreover, service connection has been established for hearing loss based on such exposure. As to the nexus, or link, between the Veteran’s tinnitus and service, the Board notes, as an initial matter, that his lay statements are of particular importance in this regard as determinations with respect to the onset and course of tinnitus turn largely on lay testimony. Tinnitus is, by definition “a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type.” Dorland's Illustrated Medical Dictionary 1914 (30th ed. 2003). Tinnitus is “subjective,” as its existence is generally determined by whether or not the Veteran claims to experience it. See, e.g., Charles v. Principi, 16 Vet. App. 370 (2002). Here, the Veteran acknowledged at his April 2019 hearing that he did not remember when his tinnitus symptoms started; and stated he did not remember whether his tinnitus started while on active duty. He also indicated it was hard to tell since there was always so much noise from aircraft during service. See Transcript, pp. 11-12. As part of a June 2012 application, and in a September 2012 statement, he reported that he had had hearing loss and tinnitus since in-service noise exposure in 1964. At the December 2012 VA examination, he reported that the onset was in late 1970s or early 1980s. At the November 2020 VA examination, he reported that the onset was 1986. The Board also notes that the December 2012 and November 2020 VA examination reports contain opinions against the Veteran’s tinnitus being etiologically linked to service, while a March 2016 private medical opinion supports such a finding. The December 2012 VA examiner’s opinion was based, in part, on the lack of findings of tinnitus in the service treatment records. However, the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); see also Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (explaining that VA was in error when the sole premise for an examiner's conclusions was the lack of notation or treatment of the claimed disability in service). The December 2012 VA examiner’s opinion was also based upon post-service noise exposure while working at an aircraft company. However, the Veteran testified at the April 2019 hearing that he always had hearing protection during his post-service civilian occupation, and did not have such while on active duty. See also October 2017 VA Form 9. The November 2020 VA examiner’s opinion was based upon the Veteran’s report that onset of tinnitus was in 1986, more than 20 years after service. However, the Veteran has testified that he does not remember exactly when the tinnitus originated, and previously indicated it originated prior to 1986. With respect to the March 2016 private medical opinion, the Board previously noted in the August 2019 remand that it was not clear whether this clinician had access to the Veteran’s full medical history, to include the service treatment records and December 2012 VA examination. Despite the foregoing, the Board notes that the March 2016 private audiologist did relate the etiology of the Veteran’s hearing loss and tinnitus to the conceded in-service noise exposure. Both of the VA examiners indicated that such could be a cause for tinnitus, even though the latter noted that there were other potential causes. The Board also notes that the March 2016 private audiologist referred to medical treatise evidence to the effect that the cause of tinnitus can usually be determined by finding the cause any co-existing hearing loss. This is of particular significance in this case as the Veteran’s hearing loss has already been recognized as being due to active service. Although the November 2020 VA examiner opined there was no such relationship, as noted, that conclusion was based on the onset of tinnitus being in 1986. The law mandates resolving reasonable doubt in favor of the claimant, to include with respect to issues of service origin. 38 U.S.C. § 5107(b);38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). In Alemany v. Brown, 9 Vet. App. 518 (1996), the Court noted that in light of the benefit of the doubt provisions of 38 U.S.C. § 5107(b), an accurate determination of etiology is not a condition precedent to granting service connection; nor is “definite etiology” or “obvious etiology.” In light of the foregoing and resolving reasonable doubt in favor of the Veteran, the Board finds that it is at least as likely as not that he developed recurrent tinnitus as a result of his active duty. The appeal is granted. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board John Kitlas, 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.