Citation Nr: 22017443 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 19-25 558 DATE: March 25, 2022 ORDER Entitlement to service connection for tinnitus is granted. FINDING OF FACT The evidence is in equipoise as to whether the Veteran's tinnitus had its inception during her active service. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 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 December 1993 to April 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for tinnitus. In December 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Entitlement to service connection for tinnitus is granted. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, "[t]o establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases, including an organic disease of the nervous system, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a) (3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). Tinnitus is considered an "organic disease of the nervous system," at a minimum where there is evidence of acoustic trauma. Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). To establish service connection under this provision, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). The Veteran contends that she developed tinnitus as a result of her active duty, which exposed her to acoustic trauma. She asserts that she was exposed to loud equipment noise and weapon fire as a combat medic and experienced ringing and buzzing in her ears. See March 2019 Notice of Disagreement (NOD); December 2021 Transcript of Hearing, pages 2-3. Service treatment records (STRs) are negative for complaints of tinnitus. The Veteran was afforded a VA examination for tinnitus in June 2018. The Veteran reported intermittent bilateral tinnitus a couple of times a day for a few minutes. The examiner noted that the Veteran did not provide details of the date and circumstances of tinnitus onset and stated that "[she didn't] remember, it's been years." After examination of the Veteran and review of the claims file, the examiner rendered a negative etiological opinion regarding the Veteran's tinnitus. The examiner opined in pertinent part, The veteran's DD214 states that the veteran served in the Army from 12.1.1993 to 4.4.1997 with an MOS of Medical lab specialist which has a low probability of noise exposure per the noise exposure listing. The veteran does not report combat experience. Currently, the gold standard for determination of acoustic trauma is positive, permanent shift in auditory thresholds. Entrance (10.23.1993) and separation (12.13.1996) audiograms are available in the veteran's STR. Records showed no hearing loss or significant changes in hearing thresholds greater than normal measurement variability during military service. The veteran's hearing remains unchanged from entrance to today's date in both ears. There is therefore no evidence of acoustic trauma. The veteran provides no nexus to correlate tinnitus onset with military service and STR are silent for reports of or treatment for tinnitus. There is no objective evidence on which to conclude that the Veteran's current reports of bilateral ringing are caused by or a result of the veteran's military service, including noise exposure. An Acceptable Clinical Evidence (ACE) opinion was obtained in June 2019. After a review of the claims file, the examiner determined that the Veteran's tinnitus was not causally related to her active duty. The examiner opined the following: While the Veteran's MOS may influence the probability of military noise exposure, the evidence of record indicates no in-service shift in hearing. Despite the high probability of hazardous noise exposure, there is no evidence of acoustic trauma. Entrance (10.23.1993) and separation (12.13.1996) audiograms are available in the veteran's STR. Records showed no hearing loss or significant changes in hearing thresholds greater than normal measurement variability during military service. The veteran's hearing remains unchanged from entrance to today's date in both ears. There is therefore no evidence of acoustic trauma. The veteran provides no nexus to correlate tinnitus onset with military service and STR are silent for reports of or treatment for tinnitus. There is no objective evidence on which to conclude that the Veteran's current reports of bilateral ringing are caused by or a result of the veteran's military service, including noise exposure. At the December 2021 Board hearing, noted above, the Veteran testified that she was frequently exposed to loud noises in the form of aircraft, generators, and gunfire as a combat medic, after which she experienced ringing and buzzing in her ears. She testified that she was told that her symptoms were normal based on her MOS, so she did not seek medical treatment. The Veteran testified that her symptoms have persisted continuously since active duty. See December 2021 Transcript of Hearing, pages 2-5. After a review of the evidence, the Board finds that service connection is warranted for tinnitus. With regard to the first element of a service connection claim, the evidence shows a current diagnosis of tinnitus. The Veteran was diagnosed with tinnitus during the June 2018 VA examination. Moreover, when a condition may be diagnosed by its unique and readily identifiable features, as is the case with tinnitus, the presence of the disorder is not a determination medical in nature, and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 305 (2007). Thus, the Veteran's reports of tinnitus are sufficient to establish the presence of a current disability. As set forth above, the second element for service connection is evidence of an in-service disease or injury. With respect to an in-service injury, the Board finds that the record does contain evidence of in-service noise exposure. The Veteran has competently and credibly reported that she was exposed to loud noises in the form of aircraft, generators, and gunfire during active duty. Thus, the Board finds that the record is sufficient to establish an in-service injury in the form of noise exposure. With respect to an in-service disease, the Board finds that the evidence is in equipoise. Again, tinnitus is an inherently subjective disability and is therefore readily capable of lay diagnosis. See Charles v. Principi, 16 Vet. App. 370 (2014). Thus, the Veteran is competent to report when she began experiencing tinnitus and the history of her symptoms. Where, as here, a claim involves a diagnosis based on purely subjective complaints, the Board is within its province to weigh the Veteran's lay statements and determine whether they support a finding of service incurrence. Id. If they do, such lay evidence is sufficient to establish service connection. Id. In this case, the Veteran reported to the June 2018 audiologist that it had been years since the onset of her tinnitus. At the December 2021 Board hearing, the Veteran clarified that she first experienced tinnitus during active duty. The contemporaneous clinical evidence contains no affirmative evidence that tinnitus was not present during active duty. Thus, resolving reasonable doubt in the Veteran's favor, the Board finds that the record is sufficient to establish an in-service disease, tinnitus. With respect to the third element, a nexus between the current disability and the in-service disease or injury, the Board acknowledges the negative opinions of the VA examiner. However, as set forth above, the law provides an alternate avenue for establishing service connection for certain chronic diseases, including an organic disease of the nervous system such as tinnitus. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Here, as set forth above, the record is sufficient to establish the onset of a chronic disease in service, tinnitus. Moreover, the Board notes that at the December 2021 Board hearing, the Veteran clarified that she first experienced tinnitus during active duty. The Board finds her statements regarding the onset of her tinnitus to be both competent and credible. The law provides that when a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. See 38 C.F.R. § 3.303(b). Absent evidence of an intercurrent cause, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the competent and credible evidence establishes that the Veteran's tinnitus had its inception during active service and has existed since that time. Therefore, service connection for tinnitus is warranted. 38 U.S.C. § 5107(b); Lynch, No. 2020-2067, 2021 U.S. App. LEXIS 37307. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Ruddy, 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.