Citation Nr: 21015302 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 18-40 612 DATE: March 17, 2021 ORDER Entitlement to service connection for tinnitus is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, the evidence is at least in equipoise that the Veteran’s tinnitus was manifest in service. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107(b); 38C.F.R. §§3.102, 3.303, 3.307, 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1969 to November 1972. This appeal to the Board of Veterans’ Appeals (Board) arose from a July 2015 rating decision issued by the Department of Veterans Affairs (VA). See December 2015 Notice of Disagreement (NOD); June 2018 Statement of the Case (SOC); August 2018 Substantive Appeal (VA Form 9). This appeal was most recently before the Board in June 2019, at which time the Board denied the Veteran’s claim for entitlement to service connection for tinnitus. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (CAVC). In a June 2020 Order, the CAVC granted a Joint Motion for Remand (JMR) which vacated the June 2019 Board decision and remanded for readjudication. In the JMR, the parties agreed that the Board erred by failing to address the Veteran’s request to hold the record open for 90 days or until evidence and argument was submitted in support of the Veteran’s appeal. CAVC noted that the five days after the Veteran’s representative submitted a statement requesting that the record be open for 90 days, VA sent a letter stating that the Veteran’s appeal had been certified. Remand was ordered for the Board to adequately address this error and readjudicate the Veteran’s appeal. CAVC stated that the Veteran could submit additional evidence and argument and the Board should reexamine the evidence of record and seek any other evidence that the Board feels is necessary. On November 30, 2020, the Board sent the Veteran and his representative a docket letter informing them that they had 90 days from the date of the letter to submit additional argument or evidence if they elected to do so. More than 90 days has elapsed since the date of the letter. Upon review of the Veteran’s claims file, the Board finds that despite the Veteran and his representative’s request to keep the record open for 90 days, neither the Veteran nor his representative submitted additional evidence or argument within the 90 day period or anytime thereafter. The only additional information added to the record was VA generated treatment records. The Board has considered these additional treatment records in reaching its decision. VA has a statutory duty to assist in developing evidence pertinent to a claim. See 38 U.S.C. § 5103A(c). However, veterans also have a duty to assist and cooperate with VA in developing evidence; “the duty to assist is not a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.” Wood v. Derwinski, 1 Vet. App. 190 (1991). Rather, the Veteran must cooperate in obtaining the evidence necessary to adjudicate the Veteran’s claim. This includes submitting evidence related to his specific claim of tinnitus. The Board has substantially complied with the June 2020 order issued by CAVC to the extent possible and will proceed with adjudication of the Veteran’s tinnitus claim based on the evidence currently of record. Service Connection Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38U.S.C. §1131; 38 C.F.R. § 3.303. Service connection is established when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Certain chronic diseases, including organic disease of the nervous system such as tinnitus, which are manifested to a compensable degree within one year of discharge from active duty, shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such diseases during the period of service. See 38U.S.C. §§1101(3), 1112; 38C.F.R. §§3.307(a)(3), 3.309. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, if a chronic disease listed at 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a) is noted during service or the presumptive period, but not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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). When the evidence for and against the claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Entitlement to service connection for tinnitus is granted. The Veteran asserts entitlement to service connection for tinnitus. See April 2015 VA Form 21-526EZ. Review of the Veteran’s service treatment records reflects that they are silent as to any complaints of, or treatment for, tinnitus. The Board notes that the Veteran was not asked about symptoms related to tinnitus during his separation examination. The numerous audiological examinations given during service note normal bilateral hearing without mention of tinnitus. The Veteran’s military personnel records indicate that his military occupational specialty (MOS) was Aviation Ordnanceman. The Veteran’s military personnel records indicate that the Veteran’s duty assignments included being aboard the USS Oriskany, an Essex-class aircraft carrier. The description for duties of an Aviation Ordnanceman are as follows: receive, inspect, package, store, handle, and process for shipment: airborne weapons, air launched torpedoes, aerial mines, sonobuoys, pyrotechnics and ammunition; maintain, test, assemble, load, download, arm, and de-arm all airborne weapons, aircraft gun systems, targets, sonobuoys, and pyrotechnics for aircraft carriage; receive, inspect, inventory, configure, test, and maintain Armament Weapons Support Equipment (AWSE), Ordnance Handling Equipment (OHE), Aircraft Armament Equipment (AAE) and Materials Handling Equipment (MHE); test and maintain aircraft armament release and control systems; inspect and maintain conventional ordnance magazines and Ready Service Lockers (RSL); maintain and operate magazine sprinkler systems; maintain and operate cargo/weapons elevators; perform preventative maintenance and inventory small arms weapons; manage accounting systems, rework of airborne weapons/systems/equipment, and conventional weapons qualification/certification programs, afloat and ashore; and prepare, review, maintain, and inspect compliance with directives and reports applicable to Notice of Ammunition Reclassification (NAR), Hazards of Electromagnetic Radiation to Ordnance (HERO), weapons certification program, and explosive handling certification program. See https://www.cool.navy.mil/usn/enlisted/ao.htm. The Veteran was afforded a VA examination for hearing related problems in July 2015. The examiner noted that the Veteran’s service records showed service in Vietnam and that the Veteran’s MOS was aviation Ordinanceman which is noted as highly probable for hazardous noise exposure. It was further noted that the Veteran reported serving on an aircraft carrier. Moreover, the examiner remarked that consistent noise exposure is noted from the carrier and specifically from the machinery space and running equipment below the berthing space. Additionally, it was stated that the Veteran denied recreational noise exposure. The Board therefore finds that in-service exposure to acoustic trauma is conceded. The examiner stated that the Veteran reported recurrent tinnitus and the timeframe of onset is uncertain. The examiner stated that the Veteran reported that the tinnitus is random and comes and goes. Ultimately, the examiner opined that it is less likely than not (less than 50% probability) caused by or a result of military noise exposure. As rationale, the examiner stated that audiometric information does not support a noise injury to the ears and service medical records are silent for subjective reports/ concerns or diagnosis of tinnitus. The Board does note that the examination revealed that the Veteran had normal bilateral hearing at the time of the July 2015 examination despite conceded noise exposure in service. In adjudicating this claim, the Board must assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). The Board must also assess the credibility, and therefore the probative value, of the evidence of record in its whole. Owens v. Brown, 7 Vet. App. 429 (1995). In determining whether documents submitted by a Veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). As an initial matter, the Board notes that ringing in the ears is the type of symptoms that is readily amenable to lay observation as it is subjective to the claimant. Thus, the Veteran is competent to report his symptoms and their frequency. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Medical treatment records, correspondence of record, and the Veteran’s own statements note his continued reports detailing his tinnitus and his contention that he was exposed to hazardous sound in service. The Veteran’s statements regarding tinnitus are generally consistent with the circumstances of his service. The Board finds the Veteran’s statements particularly those made during medical treatment credible and probative. Upon consideration of the above evidence, the Board finds that, resolving reasonable doubt in the Veteran’s favor, a grant of service connection for tinnitus is warranted. The Board acknowledges that the July 2015 VA examiner stated that it was less likely than not that the Veteran’s tinnitus began in, or is otherwise etiologically linked to, his active military service. However, the Board finds that this medical opinion did not give due consideration to the Veteran’s reports that tinnitus comes and goes. Moreover, it is unclear from the examiner’s statement whether the examiner or the Veteran was uncertain of the date of onset. Resolving reasonable doubt in the Veteran’s favor, the Board also finds that the Veteran’s statement that his tinnitus comes and goes to mean that it has done so since service (i.e., his tinnitus onset in service). The Board also finds persuasive the fact that the Veteran has denied recreational exposure to hazardous noise and the fact that there is no evidence that he was exposed to hazardous noise aside from his active duty service duties, which could have resulted in his current tinnitus disability. Additionally, the Veteran does not necessarily need to have a specific incident of acoustic trauma in service in order to demonstrate that tinnitus was present. When assessing credibility the factors which must be considered include facial plausibility; internal consistency; consistency with other evidence; self-interest or bias; lay statements made during treatment; and personal knowledge or experience. See Caluza v. Brown, 7 Vet. App. 498 (1995). The Board re-iterates that the nature and circumstances of the Veteran’s duties in service coupled with the reports he provided to the examiner are sufficient to show that he was exposed to hazardous noise during active duty service. Moreover, the Board finds that the rationale offered by the July 2015 VA examiner is flawed as the examiner incorrectly formed the basis of her opinion on the absence of complaints of tinnitus in the Veteran’s service medical records. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination was inadequate where the examiner did not comment on the appellant’s report of in-service injury and instead relied on the absence of evidence in the service medical records to provide a negative opinion). Thus, the Board affords the July 2015 medical opinion little probative weight, and affords significant probative wait to the reports made by the Veteran during the course of the July 2015 examination, given his MOS and the nature of his duties in service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Based upon the Veteran’s noise exposure in service, the nature of his duties in service, and reports of tinnitus symptoms coming and going since service, the Board finds tinnitus is a result of military service. With resolution of reasonable doubt in the Veteran’s favor, service connection for tinnitus is warranted. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dorsey-Kwansa, 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.