Citation Nr: 21041995 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 16-59 638 DATE: July 10, 2021 ORDER Entitlement to service connection for tinnitus is granted. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, the currently demonstrated tinnitus was caused by in-service noise exposure in connection with the Veteran's military duties. CONCLUSION OF LAW The criteria to establish service connection for tinnitus are met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from July 2003 through June 2004. As a member of the Louisiana National Guard, he was mobilized in support of Operation Enduring Freedom and deployed to Afghanistan. The VA denied service connection for tinnitus in a December 2014 rating decision. In the substantive appeal received in December 2016, the Veteran requested a videoconference hearing. The Veteran was notified of the scheduled hearing in a letter dated July 9, 2019, but did not appear for the hearing scheduled July 27, 2019, and did not request to reschedule his hearing. Subsequent investigation revealed the hearing was scheduled in Cleveland, Ohio, rather than near the Veteran's home in Louisiana, and also may have been scheduled for August 27, 2019 (one month later) rather than July 27. It is thus plausible the Veteran failed to appear through no fault of his own, whether due to inability to travel to the location, or due to an incorrect hearing date notification. Regardless, there is no prejudice to the Veteran's appeal, as his appeal is granted in full without the need for a hearing, for the reasons set forth below. Accordingly, his hearing request is deemed withdrawn. Entitlement to service connection for tinnitus The Veteran contends that he is entitled to service connection for tinnitus resulting from in-service noise exposure during his deployment to Afghanistan, specifically from working in a concrete plant and from exposure to IED blasts during patrol duties. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) current disability; (2) medical or lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Jandreau v. Nicholson, 492 F.3d 1372, 1372 (Fed. Cir. 2007). For organic diseases of the central nervous system, including tinnitus, the standard can be met by a showing that the disability manifested to a compensable degree within one year of separation from service, or continuity of symptomatology since discharge. 38 C.F.R. § 3.309(a). As the Veteran was not diagnosed with tinnitus within one year of service, and medical records do not reflect continuous complaints, the Veteran must establish all three elements. Tinnitus is, by definition "a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." Dorland's Illustrated Medical Dictionary, 1914 (30th ed. 2003). As such, tinnitus is "subjective," as its existence is generally determined by whether the Veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). If a veteran reports ringing in his or her ears, then a diagnosis of tinnitus is generally applied without further examination. The Veteran has received two VA Hearing Loss and Tinnitus examinations in connection with this claimed condition. In the September 2013 examination, the examiner indicated the Veteran denied experiencing recurrent tinnitus. Therefore, no diagnosis was conferred. However, in the November 2014 examination, a diagnosis of tinnitus was conferred. In that examination, the VA examiner noted the Veteran reported recurrent tinnitus which had been occurring for "some time." Tinnitus is capable of lay observation and the Veteran is competent to report his symptoms. Charles v. Principi, 16 Vet. App. at 370. Therefore, the first element of service connection is met, as the Veteran has a current diagnosis. The second and third elements of service connection are at issue here. The VA examiner in the November 2014 examination found the Veteran did not have significant noise exposure during his military service, and opined that it was less likely than not (less than 50 percent probability) that tinnitus was incurred or caused by any event or noise exposure during his military service. The November 2014 examiner based this opinion on the Veteran's previous failure to report tinnitus in the September 2013 examination, and the fact that the Veteran had an assigned military occupational specialty (MOS) with a low probability for noise exposure. The Board notes that the Veteran's service treatment records are silent as to any complaints, treatment, or diagnosis of tinnitus. However, the Veteran contends he did experience in-service exposure to acoustic trauma during his Afghanistan deployment. The Veteran's post-deployment health assessment, DD Form 2796 ("PDHA"), in May 2004, reflects he was exposed to "loud noises" during the deployment to Afghanistan. His audiogram, DD Form 2215E, in May 2004, similarly comments he was "routinely noise exposed." Additionally, documents submitted in connection with his claim for PTSD reflect his statements that Bagram Air Base experienced frequent mortar attacks during his deployment, and that he was in the vicinity of IED blasts. Although the Veteran specifically denied experiencing "ringing of the ears" on the May 2004 PDHA, marking "no" for that symptom, and purportedly denied tinnitus during the September 2013 VA examination, he has since offered additional evidence to establish both in-service exposure and a medical nexus. Specifically, the Veteran submitted VA Form 21-4138 in October 2014, contending that his tinnitus began during his deployment to Afghanistan. He further stated he had performed many other duties other than his assigned "low noise exposure" MOS (71L Administrative Specialist) during the deployment. He stated he worked as a heavy equipment operator at a concrete plant, participated in patrols, and was in the vicinity of explosions. He asserted he has experienced tinnitus since the deployment. Similarly, the Veteran contended in his Form 9 Appeal in December 2016 that his tinnitus began in 2003 during deployment and has been constant ever since. He disputes the VA's finding that he denied experiencing tinnitus during the September 2013 VA examination; he stated the examiner failed to ask him about tinnitus symptoms, and had the examiner done so, he would have reported experiencing constant symptoms of ringing in the ears, and that the symptoms began in 2003 while serving in Afghanistan. Although the Veteran's military personnel records do not reflect the variety of MOS assignments during his deployment, his September 2013 VA PTSD examination, while not specifically relevant to tinnitus, reflects a consistent statement from the Veteran that his "actual" duties included the following: "ran concrete plant, communication, guard." The Veteran's in-service noise exposure during deployment to a combat zone has been established by the evidence of record. Although the November 2014 VA examiner provided a negative nexus opinion regarding whether the Veteran's tinnitus was related to his active duty service, and the Veteran denied ringing of the ears on his PDHA and did not report or seek treatment for the condition during deployment or within one year of separation, the Board finds the Veteran's subsequent statements to be credible. The VA examiner apparently was not aware of the Veteran's diversity of duties during his deployment which exposed him to acoustic trauma. Further, while contemporaneous statements regarding medical symptoms are generally given more weight than statements years later (see, e.g., Curry v. Brown, 7 Vet. App. 59, 68 (1994)), there is no reason to question the Veteran's statements now. It is reasonable that the Veteran did not seek medical care for this condition, and the symptoms may not have been apparent to him during the deployment. The Veteran's statement contending the VA examiner did not specifically inquire about tinnitus in the September 2013 examination is credible. The Veteran contends his tinnitus began during his Afghanistan deployment and has persisted ever since. He is competent to report when he first experienced tinnitus and that the symptoms have continued since service. Charles v. Principi, 16 Vet. App. 370 (2002); Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). Although some evidence appears to be inconsistent, the Veteran has offered a plausible explanation for the inconsistencies. In this case, the Veteran was exposed to acoustic trauma in service during deployment to a combat zone, and he asserts the tinnitus has been persistent since that time. The Board finds the Veteran's statements competent and credible. Under the circumstances, the Board finds that the balance of the evidence for and against the claim of entitlement to service connection for tinnitus is in equipoise. When the evidence for and against the claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C. §§ 1154 (b); 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Therefore, the benefit of the doubt is resolved in favor of the Veteran, and entitlement to service connection for tinnitus is granted. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Medley, 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.