Citation Nr: 21020696 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 14-38 602 DATE: April 8, 2021 ORDER Entitlement to service connection for tinnitus is granted. FINDING OF FACT The Veteran’s tinnitus is a result of exposure to acoustic trauma incurred during his active-duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1981 to August 1985. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of June 2014 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. Following the rating decision on appeal, the Veteran timely filed his notice of disagreement (NOD) in July 2014. The RO issued a statement of the case (SOC) in September 2014 and the Veteran’s timely appeal to the Board followed in October 2014. The undersigned Veterans Law Judge (VLJ) conducted a hearing in this matter in November 2015 and a transcript of that hearing is of record. The Board subsequently denied the Veteran’s claim in May 2018. See May 2018 Board Decision at 4-10. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (CAVC), which adopted a joint motion for remand (JMR) vacating and remanding the Board’s decision in December 2018. See December 2018 CAVC Decision at 2-6 (providing terms of JMR); see also id. at 7 (order of the CAVC remanding “for action consistent with the terms of the joint motion”). The Board again denied the Veteran’s claim in August 2019. See August 2019 Board Decision at 5-15. The Veteran again appealed this decision to the CAVC, which again vacated and remanded the Board’s decision in August 2020. See August 2020 CAVC Decision at 2-10 (JMR); see also id. at 12 (order of the CAVC). 1. Entitlement to service connection for tinnitus. Generally, service connection requires the existence of a present disability, the in-service incurrence or aggravation of a disease or injury, and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (2004). Service connection may 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). As an initial matter, the Board notes that the onset of tinnitus is perceptible to lay observation and that the Veteran was exposed to acoustic trauma during his active-duty service. See August 2013 Discharge Certificate (reflecting service as a rifleman). “Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board[.]” Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). The Board therefore finds that the first and second Shedden factors have been met. Certain conditions, including organic diseases of the nervous system such as tinnitus, may also be service-connected on a presumptive basis even in the absence of a direct nexus. See 38 C.F.R. §§ 3.307(a), 3.309(a); see also Fountain v. McDonald, 27 Vet. App. 258, 271 (2015) (finding that tinnitus is an “organic disease of the nervous system”). Generally, such a condition must have manifested to a compensable degree within one year following separation from service. 38 C.F.R. § 3.303(a)(3). The evidentiary basis for such service-connection “may be established by medical evidence, competent lay evidence[,] or both.” 38 C.F.R. § 3.307(b); see also id. (providing that “[lay] evidence should describe the material and relevant facts as to the veteran’s disability observed within such period, not merely conclusions based upon opinion”). The Veteran has asserted that he experienced tinnitus during his active-duty service and that such tinnitus has persisted subsequently. See July 2014 NOD at 2 (asserting that “[on] 2 separate occasions I was exposed to extreme noise and sound concussion from… M60 tank and machine gun fire[,] [my] ears rang for at least a day”); see also id. (asserting that “[since] separation from the service I have always had ringing in my ears, a constant tone that never goes away”); see also October 2014 VA Form 9 (asserting that “my tinnitus began while serving on active duty and has persisted ever since); see also November 2015 Transcript at 4 (asserting that he did not file a claim for service connection until August 2013 because he was previously unaware of the availability of a compensation program); see also id. at 6 (asserting that he did not report contemporaneous symptoms of tinnitus during service because “[nobody] did back then… you just sucked it up”). As discussed in the Board’s previous decisions, these assertions are only partially consistent with the evidence of record. See June 2014 VA Examination Report at 3 (providing Veteran’s contemporaneous statement that “he is not aware of when [his tinnitus] began or how long after separation that he noticed it”); see also id. at 4 (noting bilateral hearing is within normal ranges for purposes of VA compensation); see also March 2014 Service Treatment Records at 20-26 (providing 1984-1985 complaints of stomach pain, headache, and sore throat); see also May 2018 Board Decision at 7 (finding that the Veteran’s willingness to seek treatment for other conditions supported the inference that he would have sought treatment for contemporaneous tinnitus as well); see also August 2019 Board Decision at 10-11 (finding that the absence of post-service complaints or treatment for tinnitus weighed against the inference of chronic symptoms). However, in light of the CAVC’s multiple remands on this point, the Board now finds that there is insufficient substantive negative evidence, as opposed to the absence of positive evidence, to support the conclusion that it is more likely than not that the Veteran’s tinnitus did not manifest within one year of his active-duty service. See Fountain, 27 Vet. App. at 272-274; see also December 2018 CAVC Decision at 4 (finding that the Board had not adequately explained its assessment of the probative value of the Veteran’s lay statements); see also August 2020 CAVC Decision at 4 (finding that the Board had not adequately complied with the December 2018 JMR); see also id. at 6-8 (finding that drawing inferences against the Veteran’s credibility from his willingness to seek treatment for other conditions and from the absence of corroborating treatment records for tinnitus was not adequately supported). In other words, it is at least as likely as not that the Veteran’s tinnitus manifested within one year of his active-duty service. 38 U.S.C. § 5107. The assignment of service connection on a presumptive basis is therefore warranted. 38 C.F.R. §§ 3.303, 3.309. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Blore, 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.