Citation Nr: 21023788 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 17-00 947 DATE: April 21, 2021 ORDER Entitlement to service connection for tinnitus is granted. FINDING OF FACT Resolving reasonable doubt in the Appellant’s favor, the evidence is at least in equipoise that the Veteran’s tinnitus is related to his active service. CONCLUSION OF LAW The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION Veteran served on active duty in the United States Army from June 1964 to June 1967. This matter returns to the Board of Veterans’ Appeals (Board) on remand from the Court of Veteran’s Claims (CAVC). In its May 2020 decision, CAVC vacated the Board’s December 2018 decision as to the denial of service connection for tinnitus and remanded the claim for further development. The Board therefore has jurisdiction and issues this decision on the merits under the Legacy appeal framework. Service Connection Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R.§3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain competent evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Some chronic diseases may be presumed to have been incurred in service if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38C.F.R.§3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Tinnitus, as an organic disease of the nervous system, is a listed condition with a one-year presumptive period following separation from service. 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; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 1. Entitlement to service connection for tinnitus The Appellant alleges that the Veteran’s diagnosed tinnitus is related to in-service noise exposure from combat noise and aircraft. The Board previously acknowledged, in the December 2018 decision, the Veteran’s in service acoustic trauma based on the evidence of record. The Veteran underwent an August 2011 VA examination where he was diagnosed with tinnitus. The August 2011 examination, while providing an inadequate nexus opinion, is probative of the Veteran’s current condition. The Veteran reported post-service noise exposure from aircraft when he worked for an airline. It was noted by the examiner that the Veteran did wear hearing protection in his post service work but was never issued nor wore proper hearing protection while in service. The August 2011 VA examiner reported that she could not offer an opinion on the etiology of the tinnitus with resorting to speculation given the lack of a separation audiological examination. See April 1967 Separation Exam. The Veteran submitted scientific articles regarding delayed onset for tinnitus in March 2013. The VA never obtained another addendum opinion to specifically address these articles. Based on the evidence of record, to include the lay statements and scientific evidence, and granting the Appellant the benefit of the doubt, the Board finds that the evidence is at least in equipoise regarding the claim for service connection. Prior to his death, the Veteran reported that he experienced ringing in his ears during his tour of duty in the Republic of Vietnam. His statements in this regard were not considered by the VA examiner, and are found credible based on the nature of his service as a gunner during Vietnam. The lay statements put the evidence, at the very least, in a state of equipoise. When the evidence is in equipoise, the benefit of the doubt is afforded the claimant. See 38 U.S.C. § 5107(b). For the foregoing reasons, the Board grants the Applicant’s claim for service connection of tinnitus. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Boushehri, Darjush M. 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.