Citation Nr: 21041771 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 16-58 843 DATE: July 10, 2021 ORDER Entitlement to service connection for tinnitus is granted. FINDING OF FACT The Veteran's tinnitus first manifested during combat service. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1154(b), 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309; Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from April 1969 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that this matter was most recently remanded to the Agency of Original Jurisdiction (AOJ) in December 2018. Following the requisite development, a supplemental statement of the case (SSOC) was issued in May 2020. This matter has been returned to the Board at this time for further appellate review. Entitlement to service connection for tinnitus The Veteran seeks to establish entitlement to service connection for tinnitus. Service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may be presumed, for certain chronic diseases, which develop to a compensable degree within a prescribed period after discharge from service, although there is no evidence of such disease during the period of service. This presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1110, 1112, 1113, 1137; 38 C.F.R. § 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. The continuity and chronicity provisions of 38 C.F.R. § 3.303(b) only apply to the chronic diseases enumerated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997) (applying 38 C.F.R. § 3.303(b) to a chronic disease not listed in 38 C.F.R. § 3.309(a) as "a substitute way of showing in-service incurrence and medical nexus.") In the presence of acoustic trauma, tinnitus is deemed an organic disease of the nervous system for purposes of 38 C.F.R. § 3.309(a). Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). The Board observes that tinnitus is a medical term referring to symptoms of noise in the ears, such as ringing, buzzing, roaring or clicking. Dorland's Illustrated Medical Dictionary 1714 (33rd ed. 2019). In adopting the current rating criteria for tinnitus under 38 C.F.R. § 4.87, Diagnostic Code (DC) 6260, VA described tinnitus as follows: Tinnitus is classified either as subjective tinnitus (over 95% of cases) or objective tinnitus. In subjective or "true" tinnitus, the sound is audible only to the patient. In the much rarer objective tinnitus (sometimes called extrinsic tinnitus or "pseudo-tinnitus"), the sound is audible to other people, either simply by listening or with a stethoscope. 67 Fed. Reg. 59033-01 (Sept. 19, 2002). Thus, tinnitus is a rare type of disability that, in the vast majority of cases, may be established on the basis of lay evidence alone. See Charles v. Principi, 16 Vet. App. 370 (2002). In adjudicating a claim for VA benefits, 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(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The Veteran contends that his tinnitus is caused by his exposure to noise in service. Specifically, in the June 2017 Affidavit, the Veteran reported that he experiences continuous ringing in his ears. The Veteran, as a lay person, is competent to diagnose a disability if he is competent to identify it. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Tinnitus is a disability a lay person can competently identify. Charles v. Principi, 16 Vet. App. 370 (2002). As noted above, it is defined as noise in the ears that usually is subjective. Dorland's Illustrated Medical Dictionary 1956 (31st ed. 2007). The Veteran's statements that he has tinnitus, in sum, forms a sufficient basis to find that he has this disability. Service treatment records are silent for any complaints of ringing in his ears show that the Veteran consistently denied experiencing any ringing in his ears. Further, the Veteran's November 1970 separation examination was clinically normal with regard to his ears. In July 2016, the Veteran filed a service connection claim for tinnitus. During a July 2016 VA examination, the Veteran reported that his tinnitus began after his time in service, but reported that, during service, he experienced noise exposure from landing zones, artillery, gunfire, and helicopters, while hearing protection was not worn. The examiner found that it was less likely than not that the Veteran's tinnitus was the result of military noise exposure because the Veteran did not associate his tinnitus with his time in service. In a June 2017 Affidavit, the Veteran explained that while deployed to Vietnam, he was reassigned out into the field in a supporting role and helped support combat operations for about nine months. During this time, he worked near landing zones during that time, was constantly subjected to the extremely loud noises of helicopters coming and going around the clock, flew in helicopters, and was exposed to exploding artillery used as fire support. Further, the Veteran noted that he never had any kind of hearing protection. The Veteran stated he noticed hearing difficulties by his November 1970 discharge, and had a lot of ringing and buzzing in his ears that has never stopped. However, during a September 2019 VA examination, the Veteran reported his tinnitus began around 10 years ago. The examiner found that it was less likely than not that the Veteran's tinnitus was the result of military noise exposure because the Veteran reported his tinnitus began 10 years ago. In a February 2020 addendum opinion, the examiner conceded military noise exposure, but found that there is no objective evidence of noise injury, there is no basis on which to conclude that the current tinnitus is associated with an in-service noise injury. Here, the Board has been presented with conflicting statements in the record as to whether he has had tinnitus since his period of active service. In the June 2017 Affidavit, he reported tinnitus and that his symptoms began during active service, but later he stated his tinnitus began in 2009. Also, prior to his July 2016 claim, the Veteran's treatment records indicate that the Veteran did not have tinnitus. As discussed above, the vast majority of diagnosable tinnitus cases is based solely on the patient's perception of ear ringing, buzzing, or clicking sounds. The record is not clear as to why the Veteran reported his tinnitus began during service but later stated it began in 2009 - the potential reasons could be misunderstanding of the question, that the Veteran did not manifest ear ringing at the time of examination, or that the Veteran's recollections are not accurate. The Board finds no direct evidence that the Veteran has provided untrue testimony. Resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran has manifested tinnitus since his separation from active service in 1970. (Continued on the following page.) In closing, the Veteran is currently diagnosed with tinnitus, he was exposed to military acoustic trauma while in Vietnam, and he claimed his symptoms began near his separation from service because of his in-service noise exposure. As tinnitus in the presence of acoustic trauma is deemed a chronic disease under 38 C.F.R. § 3.303(b), his testimony alone satisfies the service connection criteria and a medical opinion as to etiology is not necessary. Walker, 708 F.3d 1331 (Fed. Cir. 2013); Fountain, 27 Vet. App. at 271-72. Accordingly, resolving reasonable doubt in his favor, service connection for tinnitus is granted. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) ("By requiring only an 'approximate balance of positive and negative evidence'..., the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding... benefits.") C. HOWELL Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Patrick C. Brady, 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.