Citation Nr: 22017669 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 19-04 536 DATE: March 25, 2022 ORDER Service connection for tinnitus is granted. FINDING OF FACT The evidence is at least as evenly balanced as to whether the Veteran's tinnitus is related to in-service noise exposure. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from May 1966 to April 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO denied service connection for bilateral hearing loss and tinnitus. The Veteran timely filed a notice of disagreement (NOD) in December 2018 and substantive appeal in January 2019. In August 2019, the Board remanded the claims for further development. In June 2020, the RO granted service connection for bilateral hearing loss. This constitutes a full grant of the claim previously on appeal. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first 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). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected; if a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, such chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). Service connection for tinnitus The Veteran contends that his diagnosed tinnitus is due to his in-service military noise exposure. The Veteran's military occupational specialty (MOS) was as an auto weapons crewman, policeman, and baker. Noise exposure has been conceded by the VA. Tinnitus is capable of lay observation, and the Veteran has offered competent, credible statements that he experiences tinnitus. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"). Furthermore, medical treatment evidence of record reflects a diagnosis of tinnitus. Thus, the Veteran has met the current disability requirement. As noted above, the Veteran asserted that he was subject to noise exposure during active service. Specifically in his November 2018 NOD, he reported tinnitus due to tank fire and tank engine noise exposure. He reported that he has had ringing in his ear since service. His statements have been found competent, credible, and consistent with the circumstances of his service. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303 (a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). Therefore, the Veteran has met the in-service injury or event requirement. Hence, the dispositive issue is whether tinnitus is related to the in-service noise exposure. During the November 2018 audiological examination, the Veteran reported constant bilateral tinnitus. He stated that the onset occurred many years ago. The clinician opined that it is less likely than not (less than 50 percent probability) caused by or a result of military noise exposure. She reported that the DD 214 showed that his MOS was in food service which had a low probability for hazardous noise exposure. She reported that the Veteran did not serve an active overseas combat tour. However, she noted that the Veteran reported military noise exposure from tank fire and tank engines. She concluded that there was no objective evidence that showed a link between the Veteran's current tinnitus and military noise exposure. The August 2019 Board remand found that this opinion was inadequate specifically because the November 2018 clinician did not address the Veteran's duties as an auto weapons crewman and military policeman and the high probability of noise exposure. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Pursuant to the August 2019 Board remand, an addendum nexus opinion was obtained. In November 2019, the clinician found that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As rationale, she reported that an onset of tinnitus is clearly more than 30 years post-separation after exposure to occupational and recreational noise and research does not support late onset noise-induced tinnitus. There is no continuity of care for or chronicity of tinnitus from separation. Tinnitus is less likely as not secondary to noise-induced hearing loss from military service. Hearing loss does not cause tinnitus and cannot be an etiology for tinnitus. Tinnitus and hearing loss are often related because they share an etiology. If hearing loss is due to military noise exposure and tinnitus is clearly not related to military noise, then they do not share an etiology and are not related. She concluded that noise exposure in service is conceded but auditory damage and tinnitus from that noise is not conceded based on noise alone. The audiological professional did not take into consideration the Veteran's statement as to the onset of his tinnitus, and the continued symptoms he experienced. Thus, the opinion is inadequate. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006) (noting that VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"). The examiner did not address the Veteran's statement that his tinnitus began in service. Even if the clinician believed that that the Veteran has been inconsistent in his statements regarding the etiology of his tinnitus, she did not make any findings of that. As noted above, the Board has found the Veteran's statements to be credible. The Veteran is in receipt of service connection for his bilateral hearing loss due to his conceded in-service noise exposure although his bilateral hearing loss was not seen on separation or for many years after service. Consequently, this lay evidence of a nexus between the Veteran's current tinnitus and his military service based on continuous symptoms, even if intermittent, is entitled to substantial probative weight. The evidence before the Board thus consists of an inadequate negative medical nexus opinions and competent, credible lay evidence of current tinnitus that had its onset in service. The evidence is therefore at least evenly balanced as to whether the Veteran's tinnitus is related to his in-service noise exposure. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for tinnitus is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Buchanan, 451 F.3d at 1335 ("[N]othing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself"). L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laroche, N. 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.