Citation Nr: 21032074 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 19-05 103A DATE: May 25, 2021 ORDER Entitlement to service connection for tinnitus is granted. FINDING OF FACT The most probative evidence of record reflects that the Veteran's tinnitus had its onset in service. CONCLUSION OF LAW The criteria for establishing service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1964 to June 1968. This case is before the Board of Veterans' Appeals (Board) on appeal from a March 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veteran's Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed disagreement with this determination, and the present appeal ensued. Entitlement to service connection for tinnitus Service connection may be established for a disability resulting from diseases or injuries which are clearly present in-service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in-service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection on a direct basis generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). Additionally, other organic diseases of the nervous system, which may include sensorineural hearing and tinnitus, are classified as "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) also applies. 38 C.F.R. § 3.307; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015) (including tinnitus as an organic disease of the nervous system). Presumptive service connection for "chronic diseases" must be considered on three bases: chronicity during service, continuity of symptomatology since service, and manifestations within one year of the veteran's separation from service. Walker, 708 F.3d at 1338. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Additionally, a layperson is competent to identify tinnitus. Charles v. Principi, 16 Vet. App. 370, 374 (2002). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, VA shall give the benefit of the doubt to the Veteran. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The Veteran asserts that his tinnitus began in service and has continued ever since. In a December 2017 statement in support of his claim, the Veteran stated that he has had severe ringing in his ears since before discharge. In March 2018 the Veteran was granted service connection for bilateral hearing loss, and it was noted that the Veteran was exposed to military acoustic trauma in service; his military occupational specialty (MOS) was weapons construction system mechanic, a MOS that is highly probable for hazardous noise exposure. Therefore, acoustic trauma having occurred in service is therefore conceded. The Veteran was provided a VA examination in March 2018. The examiner noted that the Veteran stated he did not remember exactly the date of onset of the tinnitus, or any specific event that caused the tinnitus. The examiner also noted that the Veteran stated he has had tinnitus for at least ten years, and it had gotten worse overtime. The examiner concluded that the Veteran's tinnitus is not related to in-service noise exposure due to the Veteran's statement of experiencing tinnitus for only at least the last ten years. The Veteran's medical records include a December 2016 audiological examination. The audiologist noted that the Veteran had a diagnosis of tinnitus and noted that the Veteran's tinnitus had been gradually worsening over the past ten years. This statement is consistent with the Veteran's provided by the Veteran regarding the worsening of his tinnitus. The March 2018 examiner and December 2016 audiologist documented different onset dates for the Veteran's tinnitus, although both noted that the tinnitus has been worsening. This suggests to the Board that there may have been a miscommunication between the Veteran and the VA examiner in March 2018. The documented timeline in the December 2016 audiologist's note are consistent with the Veteran's statements; the Veteran began to experience tinnitus in service, the tinnitus has continued since that time, and has progressively worsened over the past ten years. The Board has resolved reasonable doubt in the Veteran's favor to conclude that a miscommunication with the March 2018 examiner led to the examiner's belief that the Veteran's tinnitus began only ten years earlier. As already noted, the Veteran is considered competent to testify as to the observable symptoms such as ringing in his ears. Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran has consistently and credibly maintained that his tinnitus, a chronic disease of the nervous system, began in service and has continued since. The Veteran's December 2017 statement, and the statement provided to the December 2016 audiologist, indicate that the Veteran has experienced tinnitus since service, and the tinnitus has worsened over the past ten years. As the Board finds that the Veteran is competent and credible with respect to his continuing symptoms of his tinnitus and its initial onset during a period of active duty, the Board has assigned his statements high probative value. Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding veteran competent to testify as to ringing in the ears). Furthermore, lay evidence concerning continuity of symptoms after service, if credible, can ultimately be considered competent, regardless of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Accordingly, and resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for the Veteran's tinnitus is warranted. 38 U.S.C. § 1110, 1131, 5107(b); 38 C.F.R. § 3.102; 3.303(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. W. Morgan, 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.