Citation Nr: 22014809 Decision Date: 03/15/22 Archive Date: 03/15/22 DOCKET NO. 18-24 468 DATE: March 15, 2022 ORDER Entitlement to service connection for tinnitus is granted. FINDING OF FACT It is at least as likely as not the Veteran's tinnitus began during his service and has persisted ever since. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, the criteria are met for entitlement to service connection for tinnitus. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 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 in the U. S. Marine Corps from October 2005 to October 2009. This appeal to this Board of Veterans' Appeals (Board) is from a June 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In support of this claim, the Veteran testified at a "virtual" teleconference hearing in November 2021 before the undersigned Veterans Law Judge (VLJ) of this Board. A transcript of the hearing is of record. Entitlement to service connection for tinnitus Service connection is granted for disability shown to be the result of disease contracted or injury sustained in the line of duty during active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Since a "chronic" disease, tinnitus also may be presumed to have been incurred in service if it manifested to a compensable degree (meaning to at least 10-percent disabling) within a year of the Veteran's discharge from service, although this presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). However, service connection is permissible for any disease, even if initially diagnosed after service, if the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran contends that he suffers from tinnitus owing to his military service. His military occupational specialty (MOS) was anti-tank missile man. He testified during his hearing in November 2021 that he was not always provided adequate protection for his ears while in service and that, because of the inherent nature of his duties and responsibilities in service, especially when considering his MOS, hazardous noise exposure in service and consequent injury (acoustic trauma) should be conceded. See 38 U.S.C. § 1154(a) and (b); 38 C.F.R. § 3.304(d). Tinnitus is "a noise in the ear, such as ringing, buzzing, roaring, or clicking." See Dorland's Illustrated Medical Dictionary 1714 (28th ed. 1994). Tinnitus is often subjective in nature; indeed, because of its inherently subjective nature, even a layman such as the Veteran is considered competent to report the observable manifestations of this condition like this ringing, buzzing, roaring, or clicking sound mentioned. He is competent to provide evidence regarding tinnitus, as it is a condition readily apparent through the senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Because tinnitus is "subjective," its existence is generally determined by whether the claimant claims to experience it. Indeed, for VA compensation 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). For this reason, the Board finds that the Veteran is competent to report experiencing ringing in his ears, in other words that he has tinnitus. Moreover, as noise exposure and consequent injury (acoustic trauma) during his service has been conceded, the Board finds his competent assertions regarding the origins of his tinnitus also are credible and, therefore, ultimately probative. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). That said, the Board also realizes that the June 2017 VA compensation examiner concluded the Veteran's tinnitus was less likely than not caused by his service. But the Veteran credibly reported during that examination that he has had tinnitus since his service. And merely because the VA examiner observed the Veteran did not complain of tinnitus following his deployment is not necessarily reason to conclude he was not experiencing it and has not continued to in the years since. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Bardwell v. Shinseki, 24 Vet. App. 36 (2010). See also Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (cautioning that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (holding lay evidence is potentially competent to support the presence of the claimed disability, both during service and since, even where not corroborated by contemporaneous medical evidence such as treatment records (service treatment records (STRs), etc.). There is no indication that since his service the Veteran has experienced the level of exposure to hazardous noise that he did in service, nor is there any indication he had tinnitus before serving in the military. Accordingly, after resolving all reasonable doubt in his favor concerning the origin or cause of his tinnitus, service connection for this disease is being granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Alemany v. Brown, 9 Vet. App. 518, 519 (1996). That is, at the very least the evidence for versus against this claim is in "approximate" (meaning nearly equal) balance, and in this circumstance of relative equipoise of the evidence for versus against the claim, the claim is granted rather than denied. See Lynch v. McDonough, 999 F.3d 1391 (2021); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Baronofsky 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.