Citation Nr: 22013261 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 19-18 736 DATE: March 9, 2022 ORDER Service connection for tinnitus is granted. FINDING OF FACT Resolving all doubt in favor of the Veteran, his currently diagnosed tinnitus had its onset during his active duty service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1985 to May 1996, July 2000 to March 2001, and January 2003 to October 2003, with additional service in the Reserve. This matter comes before the Board on appeal from a rating decision issued in September 2018 by a Department of Veterans Affairs (VA) Regional Office. In October 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. At such time, he waived Agency of Original Jurisdiction consideration of the evidence received since the June 2019 statement of the case. 38 C.F.R. § 20.1305(c). Entitlement to service connection for tinnitus. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as organic diseases of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Tinnitus is deemed an organic disease of the nervous system where there is evidence of acoustic trauma. Fountain v. McDonald, 27 Vet. App. 258 (2015). Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran seeks service connection for tinnitus. In this regard, he contends such disorder had its onset during his active duty service as a result of noise exposure therein and has been recurrent since such time. Specifically, the Veteran testified at the October 2020 Board hearing that he was exposed to loud noise from various weapons, to include M2s, M240s, M60s, .50 caliber firearms, grenade launchers, and mortar rounds, coincident with his training on the rifle range and during multiple deployments without out proper hearing protection. In this regard, he indicated that, during his deployment to Somalia, he was involved in several firefights and participated in the shooting of a rocket propelled grenade, after which his ears rang for days. Additionally, the Veteran indicated that, during his deployment to Bosnia, his job duties included locating and identifying IEDs, which were then blown up. As an initial matter, the Board finds that the Veteran has a current diagnosis of tinnitus as such disorder can be identified through lay observations alone and he has offered competent and credible descriptions of experiencing tinnitus throughout the pendency of his claim. See Charles v. Principi, 16 Vet. App. 370 (2002). Furthermore, such diagnosis is confirmed by the August 2018 VA examination. Additionally, while his service treatment records (STRs) are negative for any complaints, treatment, or diagnosis referable to tinnitus, the Board finds his statements regarding in-service noise exposure to be competent and credible as such are consistent with his military occupational specialty as military police and the circumstances of his deployments. Thus, the remaining inquiry is whether the Veteran's tinnitus had its onset in, or is otherwise related to, his military service, to include his noise exposure therein. In this regard, an August 2018 VA examiner noted the Veteran's report of constant bilateral tinnitus symptoms that he felt had become noticeable to him over the last ten years. Ultimately, he opined that the Veteran's tinnitus was less likely than not caused by or a result of military noise exposure. In support thereof, the examiner reported that, currently, no objective test measures existed to either prove or disprove the presence and/or severity of tinnitus symptoms, and, when the Veteran was questioned about his symptoms, he indicated that he had constant bilateral tinnitus symptoms that he felt had become noticeable over the previous ten years. He further reported that the Veteran's STRs were silent for any tinnitus symptoms and lacked evidence to support that a noise-induced injury occurred during his military service. Thus, he concluded that there was insufficient evidence to establish a link between the Veteran's reported tinnitus symptoms and a noise-induced injury occurring during his military service. However, the Board finds that the Veteran's reports of the onset of his current tinnitus during active duty and the continuity of symptomatology thereafter to be competent and credible. Specifically, while the August 2018 VA examiner noted that he reported that his tinnitus began 10 years previously, the Veteran reported at the October 2020 Board hearing that he misunderstood what the examiner's question and believed he was asked if his tinnitus had worsened. In this regard, the Board resolves all doubt in the Veteran's favor and finds that he did not understand the examiner's question, thereby, nullifying his response. Moreover, the Veteran testified that his tinnitus arose during his active duty service and has been recurrent since such time. In this regard, when a claim involves a diagnosis based on purely subjective complaints, the Board is within its province to weigh the veteran's testimony and determine whether it supports a finding of service incurrence and continued symptoms since service. Barr v. Nicholson, 21 Vet. App. 303, 305 (2007); Charles, supra. Therefore, in light of the totality of the evidence, to include the Veteran's response to the August 2018 VA examiner that his tinnitus began ten years prior was in error, his competent reports that his tinnitus had its onset in his military service, the credibility of which the Board has no reason to doubt, and his acknowledged in-service noise exposure, the Board resolves all doubt in his favor and finds that his currently diagnosed tinnitus had its onset during his active duty service. Consequently, service connection for such disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Department of Veterans Affairs 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.