Citation Nr: 22017239 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 18-34 304 DATE: March 24, 2022 ORDER Entitlement to service connection for tinnitus is granted. FINDING OF FACT Resolving all doubt in the Veteran's favor, the Veteran's tinnitus was incurred during the Veteran's active military service and has continued to the present. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 2006 to August 2011. This case comes to the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with the AOJ's determination, and the present appeal ensued. In October 2021, the Veteran testified at a Board hearing conducted by the undersigned Veterans Law Judge (VLJ) via videoconferencing equipment. A transcript of the hearing is associated with the electronic claims file. Entitlement to service connection for tinnitus Service connection may be established for a disability resulting from diseases or injuries which are clearly present in-service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in-service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection on a direct basis generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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 the more probative evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). Additionally, other organic diseases of the nervous system, which may include sensorineural hearing and tinnitus, are classified as "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) also applies. 38 C.F.R. § 3.307; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015) (including tinnitus as an organic disease of the nervous system). Presumptive service connection for "chronic diseases" must be considered on three bases: chronicity during service, continuity of symptomatology since service, and manifestations within one year of the veteran's separation from service. Walker, 708 F.3d at 1338. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Additionally, a layperson is competent to identify tinnitus. Charles v. Principi, 16 Vet. App. 370, 374 (2002). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, VA shall give the benefit of the doubt to the Veteran. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The Veteran was exposed to hazardous noise, as his military occupational specialty (MOS) was security forces, requiring the Veteran to spend time on the "flight lines," where he did not wear with hearing protection. Therefore, acoustic trauma having occurred in service is conceded. The Veteran was provided with a VA examination in March 2017. The examiner noted the Veteran's diagnosis of tinnitus. The examiner provided an unfavorable medical opinion, stating that the Veteran described his history of tinnitus beginning a year and a half to two years before the March 2017 examination, and therefore the Veteran's tinnitus is not due to his active service because of the lack of proximity between service and onset of tinnitus. The examiner did not further address the etiology of the Veteran's tinnitus. Generally, the degree of probative value attributed to a medical opinion issued by a VA or private treatment provider takes into account certain factors, including the opinions thoroughness and degree of detail, and whether there was a review of the claims file. Prejean v. West, 13 Vet. App. 444 (2000). The analysis also includes whether the examining medical provider had a sufficiently clear and well-reasoned rationale and a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185 (1999). The Board has been charged with the duty to assess the credibility and weight given to the evidence. The Board concludes that the March 2021 medical opinion is of little probative value concerning the etiology of the Veteran's tinnitus. The examiner relied on lack of proximity of acoustic trauma and diagnosis to conclude no medical nexus exists, however, the Veteran has consistently reported his symptoms of tinnitus prior to his diagnosis. The Board further notes that the Director of the VA Compensation and Pension Service observed in Training Letter 10-02, issued March 2010, that delayed-onset tinnitus must be considered in the service-connection analysis. The Board finds that the March 2021 examiner's assertions, without more, is an insufficient basis for the negative opinion. As already noted, the Veteran is also considered competent to testify as to the observable symptoms such as ringing in his or her ears. Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran has consistently and credibly maintained that he has experienced tinnitus, a chronic disease of the nervous system. In a June 2018 statement the Veteran stated that he initially reported ringing in his ears in service and was informed the ringing would go away. The Veteran further explained his symptoms during his October 2021 hearing. The Veteran stated he began to notice ringing in his ears during service, in around 2009 to 2011, but did not think much of his symptoms, as he would use other noise to mask the ringing. He additionally explained that he did not address his tinnitus symptoms until he was specifically asked about the ringing is his ears when he first sought treatment from VA. As the Board finds that the Veteran is competent and credible with respect to his symptoms of tinnitus and their continuity, the Board has assigned his statements high probative value. Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding veteran competent to testify as to ringing in the ears). Furthermore, lay evidence concerning continuity of symptoms after service, if credible, can ultimately be considered competent, regardless of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board further notes that tinnitus is chronic disabilities for which service connection may be established by way of credible statements of continuity of symptomatology. Accordingly, and resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for the Veteran's tinnitus is warranted. 38 U.S.C. § 1110, 1131, 5107(b); 38 C.F.R. § 3.102; 3.303(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. W. Morgan, 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.