Citation Nr: 21010480 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 17-24 448 DATE: February 24, 2021 ORDER Entitlement to service connection for tinnitus is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, her tinnitus is at least as likely as not related to service. CONCLUSION OF LAW The criteria for service connection for tinnitus are 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 FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1980 to April 1982. This appeal to the Board of Veterans’ Appeals (Board) arose from a July 2015 rating decision. In July 2020, the Veteran testified during a videoconference hearing before the undersigned. A transcript of the hearing is of record. Entitlement to Service Connection for Tinnitus Here, the Veteran claims that she has been suffering from tinnitus as a result of in-service noise exposure as an ammunitions specialist during military service. Specifically, she testified that she noticed a buzzing in her ears after leaving her ammunition duties and things were quiet. However, she did not know “what it was” and assumed that this symptom would eventually go away. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Continuity of symptomatology may also provide a basis for a grant of service connection for diseases, such as tinnitus, defined as "chronic" by VA. 38 C.F.R. § 3.303(b), 3.307(a)(3), 3.309(a); Fountain v. McDonald, 27 Vet. App. 258 (2015). After careful consideration of the evidence, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, any reasonable doubt is resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Because tinnitus is largely "subjective," its existence is generally determined by whether or not the veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). First, with respect to the current disability requirement, the Veteran has repeatedly reiterated her assertions of constant buzzing and ringing in her ears. See July 2020 Board Hearing transcript; October 2016 VA Form 9. On July 2015 VA examination, the Veteran reported that her recurrent tinnitus began “many years ago”. The Veteran is competent to report symptoms of tinnitus. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Indeed, tinnitus may only be observed by the Veteran and cannot be objectively tested for by an examiner. See generally Charles v. Principi, 16 Vet. App. 370 (2002). As for the Veteran’s reports of in-service noise exposure, such reports are credible and consistent with the circumstances of her service. Here, the record indicates that the Veteran’s military occupation specialty (MOS) was Ammunition Specialist. The Veteran was a member of the Army 9 MM Pistol Evaluation Team and the funeral detail, which involved the 21-gun salute. She also earned a Sharpshooter Qualification Badge (M-16 Rifle) and the First-Class Qualification Badge (Hand Grenade). During her service, the Veteran alleged that she was rarely offered foam ear plugs with no secondary protection. Further, as service members needed to hear commands on the line while protecting their hearing, she often used empty shell casings or cigarette butts as replacements. Moreover, following service, the Veteran has worked medical billing and has not engaged in loud recreational activities, such as hunting. In his April 2015 correspondence, the Veteran’s husband also attested to the Veteran’s noise exposure and tinnitus symptoms during service. Specifically, as a part of her various special duty assignments, the Veteran tested multiple new weapons equipment for consideration for future use in the United States Army. To gauge the efficacy of the weapons, testing sometimes required the absence of hearing protection. Additionally, as an ammunitions specialist, the Veteran often did not wear hearing protection to various ranges because she needed to hear commands from superiors. As for her symptomatology, the Veteran complained of an indescribable ringing in her ears during service. In her June 2016 correspondence package, the Veteran submitted a peer-reviewed article regarding Noise and Military Service. This article specifically noted that in the 1978, the Department of Defense (DOD) established a requirement that each of the military services conduct surveys to identify and periodically monitor noise-hazardous environments. By 1987, the requirements included provisions for measuring noise exposure for workers exposed to noise levels of 85 dBA. However, the Veteran’s service treatment records and military personnel records show no indication that these practices were implemented during her period of service. As such, for purposes of this appeal, the Board finds that DOD noise conservation practices for noise-hazardous environments were likely implemented after the Veteran’s period of service and not in effect during her active duty service. In this correspondence, the Veteran also included two buddy statements from M.H. and R.S., both of whom served in the same unit as the Veteran. Both of these service members attested to the noise exposure associated with their MOS duties as well as their current service-connected tinnitus disabilities. As the Board has no reason to doubt the credibility of the Veteran’s contentions, or that of her husband or fellow service members, the Board accepts the above assertions of in-service noise exposure, without adequate hearing protection, as probative. As for the question of a relationship or nexus between the Veteran’s current tinnitus disability and noise exposure during service, the April 2015 VA examiner opined that her tinnitus is at least as likely as not a symptom associated with her diagnosed hearing loss. The examiner offered no etiology opinion between her tinnitus and military noise exposure. However, the record contains favorable evidence of routine exposure of hazardous noise in service, without adequate hearing protection or DOD-mandated hearing conservation practices (which likely went into effect after her separation from service) as well as the Veteran’s competent description of buzzing in her ears since service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Given the nature of tinnitus, the Veteran is uniquely situated to competently identify and report on its onset and duration. Here, the Board finds her assertion that the tinnitus was incurred while in service is both competent and credible, and thus is positive evidence that supports a finding of nexus in this case. This supporting evidence places the pertinent record in relative equipoise. (Continued on the next page)   For these reasons, 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. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Spann, 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.