Citation Nr: 22018553 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 19-18 283 DATE: March 29, 2022 ORDER Service connection for tinnitus is granted. FINDING OF FACT The competing evidence is in approximate balance as to whether the Veteran's current tinnitus is the result of his active service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 1154, 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 United States Air Force from April 2009 to June 2012. This matter comes before the Board of Veterans Appeals (Board) on appeal from a January 2019 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). At an October 2021 hearing, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the proceeding has been associated with the claims file. The Board notes that additional evidence was added to the record by the Veteran which has not been considered in the first instance by the RO and for which there is no waiver of review. Additionally, the Veteran was scheduled for a VA examination which he missed with good cause. However, the Board finds no prejudicial error to the Veteran in issuing this decision as the claim on appeal is being granted in full. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service Connection The Veteran has contended that his current tinnitus is the result of his active service, to include exposure to military noise. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. See 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 the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To 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; (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)). Depending on the evidence and the contentions of record in a particular case, lay evidence can be competent and sufficient to establish a diagnosis and medical etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a), which includes organic diseases of the nervous system, such as tinnitus. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d at 1376-77. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1376-77. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A veteran is entitled to the benefit of the doubt when the evidence is in approximate balance or "nearly equal," and does not require that the evidence be in exact equipoise. Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021), affirmed en banc 2021 U.S. App. LEXIS 37307 (Dec. 17, 2021). Evidence is in approximate balance when the evidence in favor of and opposing the veteran's claim is found to be almost exactly or nearly equal. Turning to the relevant evidence of record, the Veteran's service treatment records (STRs) do not contain any complaints, symptoms, treatment, or diagnosis of tinnitus. His military occupational specialty (MOS) was RF transmission systems journeyman. Military personnel records contained a performance report that reflected the Veteran's duties of providing land mobile radio (LMR) systems maintenance and support; managing and maintaining LMR trunk systems and assets; maintaining very high frequency and ultra-high frequency ground-to-air radio communications electronics equipment; and performing installation, inspections, and maintenance of base giant voice and public address (PA) systems. Post-service, an April 2018 private audiological evaluation was conducted which noted the Veteran's complaint of tinnitus bilaterally approximately a month previously with "sudden onset." An ear conditions Disability Benefits Questionnaire (DBQ) was conducted in January 2019 which also noted the "sudden onset" of tinnitus but did not provide an etiology opinion. The Veteran stated in his February 2019 Notice of Disagreement that he had perpetual noise exposure in 2011 at Andrews Air Force Base (AFB) where he was on flight line escort duties during flight line renovations. He reported that he spent a great deal of time in close proximity to F-16 aircraft while aircraft were taking off, landing, and practicing maneuvers, as well as other aircraft. He described wearing no ear protection. He also stated that he set up PA sound systems for large events with loud feedback close by. He reported that he never complained of tinnitus in service because it had not been bothersome to the point of seriously interfering with the activities of daily living until recently. In his June 2019 Substantive Appeal, he noted that he had had no other noise exposures other than those described in service. At the October 2021 hearing, the Veteran testified that his tinnitus symptoms began in approximately 2010 to 2011 while he was at Andrews AFB and continued to the present. He reiterated his earlier descriptions of his military noise exposure. When discussing the private clinician's notation of "sudden onset" in 2018, he explained that his tinnitus had been present prior to that point, but suddenly increased in severity at that time such that he sought treatment for it for the first time. He felt that the private clinician misunderstood what he meant by "sudden onset" and that the RO had mischaracterized those statements as well. The Veteran submitted a letter from a private clinician in October 2021. The clinician stated that he had reviewed his prior noise exposure with the Veteran and concluded that it was at least as likely as not that his tinnitus was caused or related to his noise exposure while in the military. Service connection for tinnitus is granted. The Board notes at the outset that a lay person is competent to describe his symptoms of ringing in the ears throughout the years. Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). If a veteran reports ringing in his or her ears, then a diagnosis of tinnitus is generally applied without further examination. In addition, since the diagnosis of tinnitus is so heavily reliant upon lay statements, the etiology of the disorder is similarly reliant upon them. The date that a veteran reports that the tinnitus symptoms began is generally accepted as the date that the disorder began, without further examination. Thus, while service connection for tinnitus requires a medical diagnosis of tinnitus and a medical nexus relating the diagnosis to military service, lay testimony plays an unusually important role in these determinations. Given the nature of the Veteran's MOS and his descriptions of his in-service duties, exposure to military noise is conceded. Private treatment records establish a current diagnosis of tinnitus. Further, the Board finds the Veteran's statements regarding the onset of his symptomology beginning in service to be credible. A sudden onset of tinnitus was noted post-service by a private clinician; however, he has credibly explained that this was more accurately a sudden increase in volume of already-present tinnitus. (Continued on the next page) Although the private opinion of record does not contain a supporting rationale, the Board finds that with the resolution of reasonable doubt in favor of the Veteran, the evidence is sufficient to establish service connection for tinnitus. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Rachel E. Jensen, 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.