Citation Nr: 21016086 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 17-28 048 DATE: March 19, 2021 ORDER Entitlement to service connection for left ear hearing loss is dismissed. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. In February 2021, the Veteran notified the Board of his intention to withdraw his appeal for left ear hearing loss. 2. Resolving all reasonable doubt in favor of the Veteran, his tinnitus had its onset in service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issue of entitlement to left ear hearing loss, by the Veteran are met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1111, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303(a)-(c), 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Air Force from October 1974 to October 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) rating decision dated in April 2016. Withdrawal 1. Entitlement to service connection for left ear hearing loss A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. During the February 2021 Board hearing, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew the issue of entitlement to service connection for left ear hearing loss. The undersigned clearly identified the withdrawn issues, and the Veteran affirmed that he was requesting a withdrawal as to that appeal. In addition, the undersigned discussed the consequences of withdrawing an appeal, and the Veteran expressed that he fully understood those consequences. Hence, there remain no allegations of errors of fact or law for appellate consideration with respect to the issue of entitlement to service connection for left ear hearing loss and it must be dismissed. Service Connection 2. Entitlement to service connection for tinnitus The Veteran seeks service connection for tinnitus, which he asserts is related to service. Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board has carefully reviewed the evidence of record and finds that the Veteran has had ringing in his ears, which have been chronic and continuous since service. Thus, resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for tinnitus have been met. See 38 C.F.R. § 3.303(b) (Service connection may be granted based on chronicity or continuity of symptomatology for a disability which is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a), including tinnitus). At the outset, the Board notes that a current diagnosis of tinnitus has been established. See April 2016 VA examination. Service treatment records are silent as to any complaints, treatment or clinical diagnosis for tinnitus. The Board concedes that the Veteran was exposed to hazardous noise during service. Due consideration shall be given to the places, types, and circumstances of such Veteran’s service as shown by such Veteran’s service record, the official history of each organization in which such Veteran served, such Veteran’s medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154(a). The Veteran’s DD-214 notes that the Veteran’s military occupational specialty (MOS) was jet engine technician. The Veteran’s MOS has been shown to have a “highly probable” probability of exposure to hazardous noise. Therefore, the Board concedes that the Veteran was exposed to hazardous noise. The Board finds that the Veteran has competently and credibly stated that he had ringing in his ears since service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006); Layno v. Brown, 6 Vet. App. 465, 469 (1994). See May 2016 Notice of Disagreement; May 2017 Form 9 Appeal; February 2021 Board Hearing. Post-service treatment records reflect a diagnosis of tinnitus from at least April 2016. In April 2016 and July 2017, a VA examiner opined that it was less likely as not that the Veteran’s tinnitus was related to service. The examiner noted that the Veteran had reported that his tinnitus symptoms had become more noticeable over the last three to four years. In addition, the examiner noted that there were no significant shifts in audiometric thresholds for the Veteran’s ears at separation from service as compared to his enlistment in service. Further, the examiner noted that the Veteran’s file was silent regarding any symptoms of tinnitus, and thus there was insufficient evidence to establish a link between the Veteran’s reported tinnitus. Finally, the examiner noted that noise induced damage to the auditory system with delayed progressive onset was not supported in the peer review literature. In June 2017, a private treatment provider opined that it was at least as likely as not that the Veteran’s symptoms of tinnitus were due to hazardous noise exposure during service. The private treatment provider noted that the Veteran had a diagnosis of tinnitus. The Veteran reported that his MOS was avionics mechanic, which the private treatment provider noted was highly probable for hazardous noise exposure. The Veteran reported that he worked on aircraft engines for approximately 5 to 10 hours a day. The examiner opined that the Veteran had a military history which was positive for hazardous noise exposure at a level that was likely to have caused noise induced hearing loss; and noted that the Veteran also reported post-service hazardous noise exposure, which included operating lawn mowers and hunting without hearing protection. Resolving all reasonable doubt in favor of the Veteran, and with consideration of the objective medical evidence as well as the subjective lay evidence, the Board finds that there is a nexus between the Veteran’s tinnitus and service. The Board essentially finds that the evidence is in equipoise as to whether the Veteran’s tinnitus is related to service. “Congress has not mandated that a medical principal must have reached the level of scientific consensus to support a claim for veterans benefits.” Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). Instead, Congress adopted a “low standard of proof” for VA to employ to “resolve a scientific or medical question in the claimant’s favor so long as the evidence for and against that question is in ‘approximate balance.’” Id. The Board finds that a June 2017 private opinion establishes that the Veteran’s tinnitus is related to service. The June 2017 opinion is competent, credible and probative, and coupled with the other medical evidence of record and lay evidence, supports a conclusion that service connection for tinnitus is warranted. Therefore, the April 2016 VA examiner’s opinions cannot be afforded greater probative value. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. Resolving all reasonable doubt in favor of the Veteran and based on the medical and lay evidence of record, the Board finds that the evidence of record supports a finding that service connection for tinnitus is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Johnson 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.