Citation Nr: 21029318 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 14-31 487A DATE: May 13, 2021 ORDER Entitlement to service connection for tinnitus is granted. FINDING OF FACT The Veteran is competent to report that he has experienced ringing in his ears since service. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, tinnitus was incurred in-service. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from March 1970 to November 1971. In January 2015, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In April 2018, the Board, in pertinent part, remanded the appeal with respect to this issue for evidentiary development. In June 2020, the Board denied the Veteran's claim of entitlement to service connection for tinnitus. A December 2020 Court of Appeals for Veterans Claims (Court) order vacated the Board's decision as it pertains to tinnitus, and adopted a Joint Motion for Partial Remand (JMPR) for reconsideration of the Veteran's claim. Several other issues were to remain undisturbed. The claim of entitlement to service connection for tinnitus has since been returned to the Board for further consideration. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). 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 a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in-service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition, for Veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, including tinnitus, may be presumed to have been incurred in-service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309. Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown in-service, subsequent manifestations of the same chronic disease are generally service-connected. If a chronic disease is noted in-service but chronicity in-service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation 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). Walker v. Shinseki, 708 F.3d 1331, 1339-40 (Fed. Cir. 2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. 38 U.S.C. § 5107. VA shall consider all information and lay and medical evidence of record in a case. If a preponderance of the evidence supports a claim, or if a claim is in relative equipoise, the claimant shall prevail. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). If a preponderance of the evidence is against a claim, it will be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). If there is an approximate balance of positive and negative evidence regarding any material issue, the benefit of the doubt goes to the claimant. Gilbert, 1 Vet. App. at 53-54. Entitlement to service connection for tinnitus The Veteran seeks entitlement to service connection for tinnitus. Essentially, he contends that his tinnitus is due to acoustic trauma experienced in-service. For the reasons stated below, the Board finds that service connection for tinnitus is warranted. Initially, the Board acknowledges that the Veteran's service treatment records are silent as to any complaints of or treatment for tinnitus or other hearing problems. His military occupation was a cook. The Veteran received a VA audiological examination in July 2013. The Veteran reported recurrent tinnitus that onset approximately 30 years ago. The examiner stated that she cannot provide an etiological opinion with respect to the Veteran's tinnitus without resorting to speculation. Pursuant to the Board's April 2018 remand, the Veteran was afforded another VA audiological examination in June 2019. The Veteran reported that ringing in his ears began in approximately 1970 after being around generators. The examiner determined that the Veteran's tinnitus is less likely than not attributable to service. The examiner provided the following remarks: According to DD-214, the [Veteran's] MOS was a Food Service Specialist which has a low probability of noise exposure. The preponderance of evidence is insufficient to support a nexus between veteran's tinnitus and military service. Therefore, it is less likely than not that veteran's current tinnitus is related to his military service. As noted above, in June 2020, the Board denied the issue of entitlement to service connection for tinnitus. In December 2020, the Court issued a JMPR, which stated that the Board provided an inadequate statement of reasons and bases for its denial. Specifically, the Court found that the Board failed to adequately address the Veteran's lay statements and relied on an inadequate medical opinion. Here, the evidence of record documents that the Veteran has current tinnitus inasmuch as he has credibly stated that he has ringing in his ears. Additionally, the VA examiners have confirmed a diagnosis of recurrent tinnitus. The Board will also concede in-service noise exposure, given his service personnel records and statements as to being around loud noises such as machinery, aircraft, and explosions. The Board notes the negative etiological opinions provided by the VA examiner of record. The Board further notes that, in this case, the Veteran himself is of the opinion that such a link exists between his current tinnitus and active service. In other words, the Veteran is competent to state that he experiences a ringing sound in his ears. He noted that his tinnitus symptoms began when he "was on the mountain around generators in 1970" and described his symptoms as constant ringing in both ears. While a lay person, he is capable of opining on medical questions that fall within the realm of common knowledge. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). Tinnitus, or ringing in the ears, may be observed and described by a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although there is no objective evidence to support a specific incident of acoustic trauma in-service, and there are clinical opinions against the claim, the Board accepts the Veteran's statements as competent and credible as to his having been exposed to noise in the military and having ringing in his ears that continued thereafter. Therefore, after review of the record, the Board finds that the evidence is in relative equipoise, such that a finding of tinnitus of service onset may be conceded. The benefit of the doubt is thus resolved in favor of the Veteran in this matter in granting service connection for tinnitus. 38 U.S.C. § 5107. MICHAEL D. LYON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Miller, 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.