Citation Nr: 21032855 Decision Date: 05/28/21 Archive Date: 05/28/21 DOCKET NO. 14-41 632 DATE: May 28, 2021 ORDER Entitlement to service connection for tinnitus is granted. FINDING OF FACT It is at least as likely as not that the Veteran is related to exposure to hazardous noise in service. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1111, 1112, 1113, 1131, 1137, 5107, 38 C.F.R. §§ 3.102, 3.303(a)-(c), 3.307, 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Marine Corps from November 1990 to September 1991 and June 2000 to June 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) rating decision dated in February 2012. The Board remanded the matter to the AOJ in March 2018. In a September 2019 decision, the Board, in pertinent part, denied entitlement to service connection for tinnitus. The Veteran appealed the September 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In July 2020, pursuant to a Joint Motion for Remand, the Court vacated the September 2019 decision and remanded the matter to the Board for action consistent with the Joint Motion. This matter has been returned to the Board following a February 2021 Board remand to the AOJ for additional development. 1. Entitlement to service connection for tinnitus The Veteran seeks service connection for tinnitus, which he asserts is related to service. Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted based on chronicity or continuity of symptomatology for a disability which 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), including organic diseases of the nervous system which includes tinnitus. See 38 C.F.R. § 3.303(b). The Board has carefully reviewed the evidence of record and finds that it is at least as likely as not that the Veteran's tinnitus is related to exposure to hazardous noise during service. Thus, resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for tinnitus are met. Due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154(a). The Veteran's DD-214 notes that the Veteran's military occupational specialty (MOS) was basic marine from November 1990 to September 1991, and aircraft ordnance technician from June 2000 to June 2004. Audiology examinations from January 2001 indicated that the Veteran had been routinely exposed to noise during service. Therefore, the Board concedes that the Veteran was exposed to hazardous noise. Service treatment records are silent as to any complaints, treatment, or clinical diagnosis for tinnitus. See also September 1990, November 1990, May 2000, January 2001, January 2002, August 2002, November 2003 service treatment records. Nonetheless, the Board notes that service connection for tinnitus may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service findings of tinnitus, and a medically sound basis upon which to attribute the post-service findings to the injury in service, as opposed to being clearly attributable to intercurrent causes. See Hensley v. Brown, 5 Vet. App. 155 (1993). The Board acknowledges the testimony and statements of the Veteran in support of his claim, and notes that lay statements may be competent 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. Tinnitus claims may be supported by evidence of a continuity of symptomatology or on a presumptive basis. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran has testified that as an ordinance technician he was exposed to noise from aircraft, firefights, and explosives during service without wearing hearing protection. The Veteran testified that he began noticing ringing in his ears, on and off, from approximately 2006. See May 2015 hearing testimony; see also July 2010 buddy statement; October 2014 VA treatment record. But see July 2011 VA examination. These lay statements are considered competent evidence when describing the features or symptoms of an injury or illness within the realm of personal and observable knowledge. There are certain situations in which lay evidence may suffice to prove service connection on its own merits, even in the absence of evidence in the service treatment records. Buchanan, supra. Resolving all reasonable doubt in favor of the Veteran, and with consideration of the objective medical evidence as well as the subjective lay evidence, the Board finds that it is at least as likely as not that the Veteran's tinnitus is related to service. The Veteran was afforded a VA examination in July 2011. The examiner noted that the Veteran reported military and occupational noise exposure and reported that tinnitus of the right ear had begun a few months prior. The examiner opined that given the Veteran's report of when tinnitus began, it was not likely tinnitus was the result of time spent in the military. VA obtained a medical opinion in November 2018, pursuant to the March 2018 Board remand. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The Veteran reported that the onset of tinnitus was post-separation. The examiner noted that the 2011 hearing evaluation noted that the Veteran stated tinnitus episodes were recent, which was five to six years post separation. The examiner noted that there was no report of tinnitus in service treatment records, at separation or in the medical records until the time of the claim. The examiner noted that current literature did not support late onset noise induced tinnitus. As outlined in the July 2020 Joint Motion for Remand associated with an appeal of the Board's prior decision to the United States Court of Appeals for Veterans Claims, the November 2018 VA examiner did not address whether it was more likely than not that the Veteran's tinnitus was related to his conceded in-service noise exposure. In addition, the examiner did not discuss the Veteran's statements regarding his in-service onset of tinnitus. VA obtained a medical opinion in March 2021 pursuant to the Board's remand. The March 2021 VA examiner opined that it was less likely that current tinnitus was related to military noise exposure, and it did not manifest during active duty, or within one year of service, and was not causally or etiologically related to a period of active duty service. The examiner opined that although the Veteran reported constant static sounding tinnitus in both ears in 2020, the symptoms the Veteran reported in 2014 were not consistent with tinnitus as defined by medical literature, In that regard, the examiner noted that that the Veteran reported transient ear noise that occurs in the general population without auditory damage or pathology; and that the Veteran reported symptoms got more frequent indicating that the symptoms in 2006 also did not meet the medical definition of tinnitus. The examiner noted further that the Veteran's tinnitus did seem to progress by 2020 as he was reporting that it was constant. The examiner stated that the Veteran reported the onset of tinnitus in 2006, two years following service and that the relevant literature did not support progressive tinnitus from noise exposure that happened in the past. The examiner concluded that given that tinnitus as defined in relevant medical literature was not reported until 2020, it is less likely related to the Veteran's service. The Board notes, however, that despite the examiner's conclusions, VA does recognize recurrent (as opposed to constant) tinnitus, in either ear, or in the head. See 38 C.F.R. § 4.87. VA standards do not require constant static sounding tinnitus bilaterally. Tinnitus is defined as a noise in the ear, such as ringing, buzzing, roaring, or clicking, that is usually subjective in type. Dorland's Illustrated Medical Dictionary 1956 (31st ed. 2007). And, indeed, because of the inherently subjective nature of tinnitus, it is readily capable of even lay diagnosis. Charles v. Principi, 16 Vet. App. 370 (2002). Thus, based upon the Veteran's testimony that he experienced ringing in his ears on and off from 2006, the Board finds that the Veteran has a current diagnosis of tinnitus from at least 2006 for VA purposes. See 38 C.F.R. § 4.87, Diagnostic Code 6260. Although it is unclear as to whether the March 2021 VA examiner was referencing an incorrect standard for evaluating the presence of current tinnitus, the Board finds that given the Board's favorable decision, a remand for a new opinion is not warranted. See Sabonis v. Brown, 6 Vet. App. 426 (1994). The Board notes that the March 2021 VA examiner also noted tinnitus was multifactorial with contributions from, and potential interactions among numerous variables that could shape final outcomes; and any noise exposure through the Veteran's life, including traffic noise, smoke alarms, etc., would have to be considered in addition to any military noise exposure. As noted, the Veteran separated from service in June 2004. A July 2004 civilian audiogram revealed right ear decibel (dB) thresholds of 15, 15, 10, 5 and 15 dB and left ear decibel thresholds of 30, 25, 20, 10 and 25 dB at frequencies of 500, 1000, 2000, 3000, and 4000 Hertz, which suggests that the Veteran had some degree of hearing loss in his left ear from July 2004. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993) (citing Current Medical Diagnosis & Treatment, Stephen A. Schroeder, et. al. eds., at 110-11 (1988)). Thus, the Board finds that it is at least as likely as not that the Veteran's tinnitus is related to service based upon the conceded exposure to hazardous noises in service, the July 2004 civilian audiogram, which reflected some degree of noncompensable hearing loss within one year of service, the Veteran's testimony that he became aware of ringing in his ear in 2006; and the March 2021 VA examiner's statement that any noise exposure, including military noise, could have contributed to the Veteran's tinnitus. Thus, the Board finds that although the March 2021 VA examiner opined that it was less likely than not that the Veteran's tinnitus was related to service, the March 2021 VA opinion coupled with the other medical evidence of record, including service treatment records, post-service civilian audiograms and lay evidence, supports a conclusion that service connection for tinnitus is warranted. The Board essentially finds that the evidence is in equipoise as to whether the Veteran's tinnitus is related to service. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (indicating an "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology). Although the March 2021 VA examiner noted that other factors, including exposure to traffic noise, smoke alarms, or the Veteran's civilian employment, could have contributed to the Veteran's tinnitus; there is no evidence to support a finding that the Veteran's tinnitus was clearly attributable to intercurrent causes. See Hensley, supra. Rather, the evidence of record reflects that in addition to civilian noise exposure, the Veteran was also exposed to hazardous noises in service, and there is some evidence of acoustic abnormality within one year of separation from service. "Congress has not mandated that a medical principal must have reached the level of scientific consensus to support a claim for veterans' benefits." Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). Instead, Congress adopted a "low standard of proof" for VA to employ to "resolve a scientific or medical question in the claimant's favor so long as the evidence for and against that question is in 'approximate balance.'" Id. (Continued on the next page) In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. Resolving all reasonable doubt in favor of the Veteran and based on the medical and lay evidence of record, the Board finds that the evidence of record supports a finding that service connection for tinnitus is warranted. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Johnson 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.