Citation Nr: 21010689 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 19-29 751 DATE: February 25, 2021 ORDER Entitlement to service connection for tinnitus is granted. FINDING OF FACT The probative and competent evidence of record is in equipoise as to whether the Veteran’s tinnitus was incurred in or related to military service. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from February 1963 to January 1967, with service in Vietnam. This matter comes to the Board of Veterans’ Appeals (Board) on appeal of a June 2017 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service (typically one year); or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Notably, tinnitus is considered an organic disease of the nervous system, and therefore is a chronic disease by regulation. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for tinnitus The Veteran contends he entitled service connection for tinnitus. He reports he began to have symptoms while on active duty and is tied to events restated in his PTSD and hearing loss claims. Specifically, the Veteran reports while engaged in firefight in Vietnam, a shotgun was fired directly next to the left side of his face causing his eardrum to burst and his ears to bleed. As a result, he fell and hit his face on a truck hitch and lost consciousness and subsequently had reparative surgery to his left eardrum. See Statement in Support,1/21/2019; C&P Exam, 1/29/2019, pg 2/7. The Veteran also contends his MOS as a diesel mechanic whose duties included regular work in the ship’s engine-room and proximity to loud aircraft has caused his tinnitus. He reports having constant ringing in his ears since his separation. Statement in Support, 2/23/2018. The Veteran’s March 2017 VA examiner opined his tinnitus was less likely than not related to his military service. The examiner noted his tinnitus had an onset of two to three years prior and was likely due to his post-service noise exposure to heavy machinery. The Veteran refutes the examiner’s statement that his symptoms began two to three years prior to his 2017 exam. See NOD, 2/23/2018. He reports that his VA examiner did not specifically ask him when his symptoms began and asserts he has had constant ringing in since service. See Form 9, 10/1/2019. During the hearing loss portion of the exam, the examiner indicates the Veteran’s service treatment records do reveal ear problems and hearing loss while in service. His service treatment records confirm hearing loss and ear problems noted in May 1987 and March 1988. See STR, 1/31/2017, pg. 13-15/25. Post-service treatment records indicate he first received an audiology exam in July 2013 and indicated he has had difficulty with hearing and related problems since his tympanic membrane perforation during combat. The Veteran described his tinnitus symptoms as intermittent buzzing in the left ear. CAPRI, 8/14/2019, pg. 364/805. In Charles v. Principi, 16 Vet. App. 370 (2002), the Court determined that tinnitus (ringing in the ears) is the type of disorder associated with symptoms capable of lay observation. When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. In such cases, VA is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (stating that lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition). The Board recognizes the examiner’s negative nexus opinion but upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current tinnitus arose in service. The Veteran is both competent and credible and the evidence of record demonstrates the Veteran currently has tinnitus; that his duties during service involved exposure to hazardous noise and that a traumatic injury to his ear occurred, and that he has experienced tinnitus since service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for tinnitus is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.N. Chapman, 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.