Citation Nr: 21013494 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 18-49 056 DATE: March 9, 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 in-service noise exposure. CONCLUSION OF LAW The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1956 to March 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2020, the Veteran testified before the undersigned during a virtual hearing. A transcript of the hearing is included in the electronic claims file. In November 2020, the Board reopened the claim and remanded the matter, on the merits, for further development. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 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, including tinnitus, will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they 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, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. At the hearing and in the bulk of medical records, the Veteran explained that he has had ringing in his ears since he was in Korea. See e.g., VA treatment records of July 2017, September 2016, June 2016, August 1994. The Veteran further testified that during service, he was exposed to loud airplanes and munitions, and that a stack of wrappers fell on his head while in basic training. The Veteran’s service treatment records and personnel records are unavailable, as they have been deemed destroyed in a fire at the National Personnel Records Center (NPRC). The Board acknowledges VA’s heightened duty to assist a claimant where records are deemed fire related or otherwise lost. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005). The Board finds that the first two elements have been satisfied. The Veteran has a current disability of tinnitus, a disability capable of lay observation. Charles v. Principi, 16 Vet. App. 370, 374 (2002). He has competently and credibly reported current tinnitus symptoms. See Hearing Testimony; July 2017, September 2016, June 2016, August 1994, VA Medical Records; 1974 doctor note. Also, the Veteran’s exposure to excessive noise in service has already been acknowledged by VA. See December 2020 Rating Decision. Regarding the third element, nexus, the evidence is conflicting. Against the claim is a VA examination report from December 2020, in which the VA examiner opined that the Veteran’s tinnitus was less likely than not related to his in-service noise exposure. In doing so, the examiner cited private medical records dated from 1974 and 1980 indicating that tinnitus began in 1969, which was approximately 10 years after discharge. The examiner cited a lack of documentation in the service treatment records or at separation, and stated that medical literature does not support late onset noise-induced tinnitus. Rather, the examiner opined that the current tinnitus was at least as likely as not related to hearing loss as it is a known symptom of hearing loss. In support of the claim is a November 2020 VA examination report in which the examiner opined that it is at least as likely as not that the Veteran’s tinnitus was incurred in or due to exposure to hazardous noise during active duty. In doing so, the examiner cited medical literature stating that repetitive exposure to weapon-related noise is a widely accepted causative factor of tinnitus. Additionally, the record contains private treatment records dated from July 1974 and June 1983, indicating that the Veteran’s tinnitus was probably related to noise exposure. (Continued on the next page)   In considering the evidence under the laws and regulations as set forth above, and resolving all reasonable doubt in the appellant’s favor, the Board concludes that the Veteran is entitled to service connection for tinnitus as directly related to service. At a very minimum, the evidence is in equipoise. Therefore, the benefit is granted. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Chalker, Phillip 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.