Citation Nr: 21023429 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 14-19 800A DATE: April 20, 2021 ORDER Entitlement to service connection for bilateral tinnitus is granted. FINDING OF FACT The evidence is in at least relative equipoise as to whether the Veteran has a current tinnitus disability that was incurred in or otherwise related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1998 to December 2001. The Veteran also has National Guard service, including a period of active duty for training (ACDUTRA) from February 1997 to June 1997. This appeal to the Board of Veterans’ Appeals (Board) arose from an April 2009 rating decision issued by the Department of Veterans Affairs (VA). See March 2010 Notice of Disagreement (NOD); June 2014 Statement of the Case (SOC); June 2014 Substantive Appeal (VA Form 9). The Veteran testified before the undersigned Veterans Law Judge in a July 2016 hearing. See July 2016 Hearing testimony. In January 2018, the Board remanded the claim to obtain any outstanding service or treatment records during her period of National Guard service. January 2018 Board decision. In February 2020, the Board denied the Veteran’s claim of entitlement to service connection for bilateral tinnitus. February 2020 Board decision. The Veteran appealed the February 2020 Board decision to the Court of Appeals for Veterans Claims (CAVC) and, through a Joint Motion for Remand, the claim was remanded to the Board for further reasons and bases as to why the Veteran’s lay statements about her tinnitus were inadequate to support service connection. December 2020 CAVC decision. Entitlement to service connection for bilateral tinnitus. The Veteran testified that she was exposed to hazardous noise during her National Guard service prior to her period of active duty. July 2016 Hearing testimony. The Veteran testified that she was exposed to weapons fire noise while on the firing range during ACDUTRA. Id. The Veteran testified to having ringing in her ears, which lasts from a few seconds to a minute once every week or month, since her 1997 period of ACDUTRA. See id. The term “active military, naval, or air service” includes active duty and any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in the line of duty. See 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6(a). Service connection is warranted where the evidence of record establishes that an injury or disease resulting in disability was incurred in the line of duty in the active military, naval, or air service or, if preexisting such service, was aggravated thereby. 38 U.S.C. § 1110; 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. 38 U.S.C. § 1110; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). 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). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The Board notes that the Veteran’s service treatment records and the medical treatment evidence since separation are silent for any complaint or treatment for tinnitus or ringing in the ears. However, given the inherently subjective nature of tinnitus, the Veteran is uniquely situated to competently identify and report on the onset and duration of ringing in his ears. A lay person is competent to provide an opinion on the presence of recurrent ringing in the ears since service, as the symptom is capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that the veteran testified that he experienced ringing in his ears in service and that he experienced such ringing ever since service, and finding that the veteran was competent to so testify because ringing in the ears was capable of lay observation). The Board also finds that the Veteran’s testimony about being exposed to noise from weapons fire on a firing range is consistent with the circumstances of her ACDUTRA. The lack of complaint to her medical treatment providers about her tinnitus symptoms do raise a reasonable doubt as to whether tinnitus is a current disability that was incurred or is otherwise related to service. In resolving any reasonable doubt in favor of the Veteran, the Board finds that the Veteran has a current disability of tinnitus that was incurred during service. Accordingly, entitlement to service connection for bilateral tinnitus is warranted. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Lin 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.