Citation Nr: 21007715 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 19-36 655 DATE: February 10, 2021 ORDER Entitlement to service connection for tinnitus is granted. FINDING OF FACT The evidence of the record establishes that the Veteran’s tinnitus is related to his in service noise exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from May 1989 to October 1997. This current appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C.§ 7107(a)(2). In November 2019, during the pendency of the appeal, the Agency of Original Jurisdiction (AOJ) granted a 10 percent rating for the Veteran’s hemorrhoids from September 7, 2018. On the January 2020 VA Form 9, the Veteran specifically limited his appeal to the issue of entitlement to service connection for tinnitus and only discussed this issue on the VA Form 9. Therefore, the issue of entitlement to an increased rating for hemorrhoids is effectively withdrawn and not before the Board for appellate consideration. The Board acknowledges that the Veteran requested a hearing before the Board. He was scheduled for a virtual hearing in January 2021, but failed to report. There has been no request to reschedule the hearing. In any event, in light of the favorable determination in this matter, the Board finds that there is no prejudice to the Veteran to continue with the appellate review of this case. Service connection for tinnitus, to include as secondary to service-connected panic disorder without agoraphobia A veteran is granted service connection where evidence shows that an injury or disease that results in a current disability was incurred during service or was aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To be entitled to service connection, the evidence must support (1) a current disability; (2) an in-service injury or event; and (3) a nexus between the current disability and the in-service injury or event. 38 C.F.R. § 3.303(a). Service connection can also be granted for chronic disabilities, if the evidence establishes that it manifested to a compensable degree within one year after the Veteran was separated from service. 38 C.F.R. § 3.307, §3.309. Service connection for chronic disabilities can be established through a showing of continuity of symptomatology since service, as an alternative to the nexus requirement. 38 C.F.R. § 3.303(b). This option is limited to chronic disabilities listed in 38 C.F.R. § 3.309(a). In this current matter, the evidence of the record establishes that the Veteran has a current diagnosis of tinnitus. See April 2017 Private Medical Treatment Record & November 2018 VA Examination Report. The Veteran contends that he developed tinnitus during service. He states that he first noticed occasional ringing in his ears while serving as an aircraft non destructive inspector from approximately April to December 1996. His military occupational specialty (MOS) involved aircraft maintenance, which has been determined to have a high probability of hazardous noise exposure. See September 2018 Exam Request. The service treatment records document that the Veteran was involved in the hearing conservation program, which is designed for servicemen routinely exposed to hazardous noise. As to whether there is a nexus between the Veteran’s currently-diagnosed tinnitus and his service, the October 2018 VA examiner opined that it was less likely than not that the Veteran’s tinnitus was caused by military noise exposure. The examiner explained that excessive noise exposure can damage the sensory cells of the cochlea and that the damage results in hearing loss and often tinnitus. The examiner stated that the Veteran did not have hearing loss or evidence of cochlear damage, acoustic trauma, or reports of tinnitus in the service treatment records. The examiner based this opinion on the lack of documentation regarding acoustic damage or reports of tinnitus during service. However, the Veteran reported at the examination that he experienced occasional ringing during service. Lack of medical evidence in service does not serve as an absolute bar for entitlement to service connection. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). Additionally, relying on the absence of evidence in medical records (without regard for lay statements), to provide a negative opinion is contrary to established case law, and such opinions are therefore inadequate. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) & Dalton v. Peake, 21 Vet. App. 23. Tinnitus is a condition for which the Veteran is uniquely situated to identify and report competently on the onset and duration of this condition. Charles v. Principi, 16 Vet. App. 370 (2002). In this matter, the Board finds that the Veteran’s reports regarding experiencing occasional ringing in his ears in service to be competent and credible. Importantly, however, in February 2020, a private physician, who reviewed the Veteran’s claims file, opined that it was more likely than not the Veteran’s tinnitus was directly related to his service. The private physician outlined the pertinent facts of the Veteran’s medical history and his military service and explained that tinnitus is extremely common in persons with chronic noise exposure. After a thorough consideration of the evidence, the Board finds that the preponderance of the evidence establishes a direct nexus between the Veteran’s tinnitus and his service. The February 2020 private physician provided a thorough review of the pertinent facts of the Veteran’s case and applied them to the applicable medical literature to render a nexus. The credible evidence of the record, both lay and medical, support the medical opinion provided, and a nexus between his tinnitus and his service. Accordingly, the Board finds that the criteria for service connection for tinnitus on a direct basis have been met. In reaching this decision, the Board has considered the Veteran’s additional assertion that his tinnitus is due to medication he uses to treat his service-connected panic disorder without agoraphobia. In this regard, the Board notes that service connection may be established on a secondary basis for a disability which is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. In order to prevail on the theory of secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Here, the October 2018 examiner acknowledged an August 2016 treatment note discussing the presence of tinnitus as a possible side effect of medicine. Indeed, this outpatient treatment record indicates that the Veteran takes Paxil, Xanax, Effexor, and Zoloft for treatment of his panic disorder. It was also later noted that the Veteran experienced mild tinnitus as a side effect. See April 2017 Private Medical Treatment Record. Importantly, the February 2020 private physician, who reviewed the Veteran’s claims file, opined that it was more likely than not the Veteran’s tinnitus was directly related to his service—and also to his antidepressants. This doctor explained that peer-reviewed medical literature had ample documentation regarding the link between those who take antidepressants and the development of tinnitus. The physician referenced the supporting medical literature. The medical literature discussed the link between the specific antidepressants the Veteran is prescribed, such as Paxil and Effexor, and the onset of tinnitus. See March 2020 Private Medical Treatment Record. In general, service connection on a direct basis is the greater benefit, as compared to service connection on a secondary basis. As previously discussed herein, the Board finds that service connection for tinnitus on a direct basis is warranted. Although service connection for tinnitus, as secondary to the service-connected panic disorder without agoraphobia, is also warranted, the Board is herein specifically granting service connection for tinnitus on a direct basis (the greater benefit). THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Middleton, Associate 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.