Citation Nr: 21009965 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 190315-4433 DATE: February 23, 2021 ORDER Service connection for tinnitus is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his tinnitus is related to his military noise exposure. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 1965 to December 1968. In September 2019, the Board, in pertinent part, denied service connection for tinnitus. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2020 Order, the Court granted the Joint Motion for Partial Remand (JMPR), thereby vacating the Board's September 2019 decision, in part, and remanding the issue of entitlement to service connection for tinnitus back to the Board. 1. Entitlement to service connection for tinnitus. The Veteran contends his hearing loss and tinnitus are due to exposure to gunfire and loud engine noises from small boats, without hearing protection, in service. 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; 38 C.F.R. § 3.303(a). Certain chronic diseases are presumed related to service if they were shown as chronic in service; or, if manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.307, 3.309. Tinnitus is a chronic disease for VA purposes. 38 C.F.R. § 3.309(a). The question for the Board is whether the Veteran has a current disability of tinnitus that began during service or is at least as likely as not related to an in-service injury, event, or disease. After considering the record, the Board finds that the evidence is at least in equipoise as to whether the Veteran's tinnitus is related to noise exposure in service. Thus, resolving reasonable doubt in his favor, the Board concludes his tinnitus had an onset during service. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Review of the record includes a February 2017 VA examination report showing a current diagnosis of tinnitus. Service treatment records (STRs) are silent for any mention of ringing in the Veteran’s ears or tinnitus. Service personnel records show that his military occupational specialty was boatswain mate, which the Agency of Original Jurisdiction (AOJ) noted was highly probable for hazardous noise exposure. Thus, the Veteran’s exposure to excessive noise in service is conceded. On a VA examination in 2017, the Veteran reported constant bilateral tinnitus that had an onset “years ago”. He reported that in service he was exposed to noise from .50 caliber machine guns and ship engines, without hearing protection, and that for occupational and recreational noise exposure, he hunted with a rifle, shotgun, and pistol, with hearing protection. The VA examiner could not provide an opinion regarding the etiology of his tinnitus without resorting to speculation, noting that STRs were silent for tinnitus. The examiner also noted that the Institute of Medicine (2006) stated that if documentation of tinnitus at discharge from service was missing, it was nearly impossible to determine whether tinnitus detected by audiometric testing later in life was the result of noise exposure during prior military service. As further explanation for the inability to resolve the issue of etiology without resort to speculation, the examiner noted that there was no valid hearing test at separation, the Veteran had not provided any subjective reports that the onset of his tinnitus was in service, and there were other potential etiologies to explain the onset of his tinnitus, including aging, recreational noise exposure, middle ear pathology, and usage of nicotine. The examiner concluded it would be speculative to allocate a portion of his current tinnitus to military noise exposure or to any other potential etiology, and that the etiology of his tinnitus could not be determined to a reasonable degree of certainty. The Board notes that while the Veteran stated to the 2017 VA examiner the onset of his tinnitus was “years ago”, there is also a December 2016 statement in which the Veteran competently and credibly reported that as a result of exposure to gunfire from fifty caliber machine guns and loud engine noises in service, he “developed a loss of hearing and ringing in [his] ears” and that “this ringing in [his] ears has never gone away”. The examiner did not note consideration of this specific statement. Moreover, while this statement in December 2016 by the Veteran does not specify the exact timing of when he developed ringing in his ears, in considering this statement in the light most favorable to the Veteran, his words could amount to an assertion that he developed ringing in his ears right after the exposure to excessive noise in service that continued since service. Tinnitus is a condition that may be diagnosed by its unique and readily identifiable features, and the presence of the disorder is capable of lay observation. Charles v. Principi, 16 Vet. App. 370 (2002) (for tinnitus, a Veteran is competent to present evidence of continuity of symptomatology). In light of the foregoing, the Board finds that the pertinent evidence of record is in relative equipoise, and that it is not possible to determine to what extent the Veteran's tinnitus may be attributed to noise exposure in service versus some other etiology. Some doubt remains as to whether at least some of the Veteran's tinnitus may be attributable to service, as opposed to some other cause. Thus, the Board resolves reasonable doubt in favor of the Veteran and grants service connection for tinnitus. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Casula 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.