Citation Nr: 22013167 Decision Date: 03/08/22 Archive Date: 03/08/22 DOCKET NO. 19-21 423 DATE: March 8, 2022 ORDER Service connection for tinnitus is granted. FINDING OF FACT The Veteran's tinnitus began during active service and is otherwise related to his military service. CONCLUSION OF LAW The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from September 1971 until his honorable retirement in February 1996. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2018 decision issued by a Regional Office of the United States Department of Veterans Affairs (VA). In May 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. Evidentiary Standards In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). "[E]vidence is not in 'approximate balance' or 'nearly equal,' and therefore the benefit-of-the-doubt rule does not apply, when the evidence persuasively favors one side or the other." Lynch v. McDonough, ___ F.4th ___, 2021 U.S. App. LEXIS 37307, at *11; 2021 WL 5983923 (Fed. Cir. Dec. 17, 2021) (en banc). The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 12829 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claim. Service Connection VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a "service connection." 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to be entitled to service connection there must be competent, credible evidence of (1) a current disability, (2) an 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); Pond v. West, 12 Vet. App. 341 (1999). When these elements are satisfied, service connection may be granted on a direct basis. Analysis First element: A current disability 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, 374 (2002) (noting that the Veteran was competent to testify as to ringing in the ears during service and that he experienced such ringing ever since service "because ringing in the ears is capable of lay observation"). The Board finds the Veteran has credibly testified that he experiences tinnitus. His testimony is also probative. Therefore, the Board finds the first element is satisfied. Second element: An in-service event, injury, or illness, or aggravation thereof During his military service, the Veteran's military occupational specialty (MOS) was as a flight communications operator. He testified about his routine duties associated with his MOS, which the Board finds credible and probative. The Department of Defense created a Duty MOS Noise Exposure Listing, which is a compilation of Department of Defense-verified lists of MOSs and their respective corresponding probability of hazardous noise exposure. VA adjudicative procedures instruct that if an MOS is shown to have a "High" or "Moderate" probability of exposure to hazardous noise, exposure to such noise will be conceded for purposes of establishing an in-service event with respect to direct service connection. The Veteran's MOS is classified as having either a moderate or high probability of hazardous noise exposure. Therefore, the second element is satisfied. Third element: A causal link The Veteran received a VA-contracted medical examination in October 2018 assessing his tinnitus. The examiner opined that the Veteran's tinnitus was less likely than not incurred in or caused by his military service. She relied on the absence of evidence of tinnitus symptoms in service. But she incorrectly stated that the Veteran served only from 1989 to 1996 and that there was a lack of an entrance examination. To the contrary, the Veteran served from 1971 to 1996 and his military records contain numerous examinations, including an entrance examination dated January 27, 1971. Because the examiner relied on inaccurate information when forming her opinion and did not consider the full array of relevant and available evidence, her opinion is not credible or probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) ("An opinion based on an inaccurate factual premise has no probative value."). There is no other medical opinion of record addressing the etiology of the Veteran's tinnitus. This fact, however, does not preclude the Board from considering the claim on appeal. The Veteran testified that he experienced an onset of ringing and buzzing in his ears while in service, particularly after performing duties associated with his MOS. He did not report these symptoms to in-service medical professionals because they were not severe, and he believed he could work through the symptoms. During the October 2018 VA-contracted examination, he reported symptoms of tinnitus having their onset about two years prior. But, at his Board hearing, he testified that he misinterpreted the examiner's questions. He explained that he thought the examiner wanted to know when his tinnitus became persistent, not when they symptoms first appeared. He explained his tinnitus was sporadic in service and only recently became persistent, which is when he sought service connection. The Board finds his testimony credible and finds that he did experience an onset of tinnitus symptoms in service, which were sporadic rather than persistent. In this instance, the Veteran's testimony in conjunction with other relevant evidence of record is sufficient to show a continuity of symptoms related to tinnitus since service. See Savage v. Gober, 10 Vet. App. 488, 497 (1997) (holding that lay evidence of continuing symptoms of a disability following service can be sufficient to demonstrate a medical nexus between a current disability and an in-service event or injury, even where there is no medical opinion establishing that nexus). Therefore, the third element is satisfied. Accordingly, service connection for tinnitus is granted. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, 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.