Citation Nr: 21024472 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 16-10 493 DATE: April 22, 2021 ORDER Service connection for tinnitus is granted. FINDING OF FACT The weight of the competent and probative evidence is at least in equipoise as to whether the Veteran’s tinnitus manifested during or is otherwise related to a period of active service. CONCLUSION OF LAW The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1987 to December 1987 and from November 1990 to June 1991. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In a January 2019 decision, the Board denied reopening of the claim. That decision was vacated and remanded in a March 2020 Joint Motion for Remand (JMR) issued by the Court of Appeals for Veterans Claims (Court). The matter was before the Board and remanded for further development in August 2020. It has returned to the Board and is now ready for appellate review. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). As a general matter, establishing service connection requires competent evidence of (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Certain chronic diseases, such as tinnitus, will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran is competent to report symptoms and experiences he can observe. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). The VA must give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 C.F.R. § 3.102. 1. Service connection for tinnitus After review of the record, the criteria for service connection for tinnitus are met. A competent diagnosis of recurrent tinnitus was confirmed during a November 2020 VA examination. The Veteran contends exposure to high noise levels during service in the Gulf War caused her to develop tinnitus. July 5, 2013, Correspondence. While serving as military police providing support for combat units during the war, the Veteran was exposed to loud noise involving fire fights, thunderous bunker buster operations, tanks, and helicopter fire. Id. Noise exposure is conceded. The November 2020 examiner opined that tinnitus was less likely than not caused by or a result of military noise exposure based on the Veteran’s testimony for date of onset being 2010 or 2011 as that time exceeds the VA’s reasonable delay of onset. November 9, 2020, VA Examination. In response to this opinion, the Veteran submitted a statement explaining that the 2010 or 2011 dates reported during the examination were the dates she first sought treatment for tinnitus, not the date of onset. See December 7, 2020, Correspondence. The Veteran further stated that tinnitus began after she returned to the United States in 1991. Id. An opinion regarding conflicting medical evidence was obtained in January 2021. The January 2021 examiner determined that the symptoms reported during a 2013 examination were consistent with transient ear noise and the symptoms progressed to a clinical tinnitus in November 2020. January 24, 2021, VA Examination. The examiner opined that tinnitus was less likely than not related to military noise exposure because of the delayed onset of 30 years post separation. See id. The November 2020 examiner’s opinion is given little probative value as it is based on an inaccurate premise regarding the onset of symptoms. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (medical opinions based on an incomplete or inaccurate factual premise are not probative). The January 2021 examiner’s opinion is given little probative value as the examiner did not acknowledge and consider the Veteran’s lay statements concerning the onset of symptoms upon return in 1991 or the description of symptoms as continuous or constant ringing in the ear. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (a medical opinion is inadequate if it does not take into account the Veteran’s reports of symptoms and history); see also December 7, 2020, Correspondence; March 16, 2016, VA Form 9. The Veteran is competent to describe symptoms observable to her senses such as ringing in her ears. See Jandreau, 492 F.3d at 1377. The Board notes that in 2013, the Veteran stated that symptoms began 20 plus years earlier, which is consistent with an onset within one year of separation. See July 19, 2013, CAPRI. The competent and probative evidence is at least in equipoise as to whether the Veteran’s tinnitus manifested to a compensable degree within one year from the date of separation from service. The Veteran’s lay statements concerning the onset and continuous symptoms of tinnitus since she returned to the United States are competent, credible, and highly probative. Resolving all doubt in the Veteran’s favor, tinnitus is presumed related to service and the claim is granted. See 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a); see also Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013) (stating that the primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the “nexus” requirement of the three-element test, whereas the former benefits from presumptive service connection, absent intercurrent causes, or service connection via continuity of symptomatology). K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Monica Ball Jackson, 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.