Citation Nr: A25035115 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240805-461786 DATE: April 16, 2025 ORDER Entitlement to service connection for tinnitus is granted. FINDING OF FACT The Veteran's tinnitus manifested to a degree of 10 percent or more within one (1) year of the Veteran's separation from active service. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§1101, 1110, 1154 (a); 38 C.F.R. §§ 3.102, 3.104, 3.307, 3.309(a) REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from March 1997 to May 1997 and in the Coast Guard from May 1999 to August 2001. In the August 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the July 2024 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim(s), considering the new evidence in addition to the evidence previously considered. Id. Entitlement to service connection for tinnitus is granted. The Veteran contends that his bilateral tinnitus was caused by military noise exposure due to his military occupation specialty (MOS) as a machinery technician working in a ship's engine room. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166 (Fed. Cir. 2004). Some chronic diseases, including organic diseases of the nervous system like sensorineural hearing loss and tinnitus, may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The applicable presumptive period is one year from separation. Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability that are 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); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Moreover, the Board notes that tinnitus is a type of disability that may be established on the basis of lay evidence alone. Charles v. Principi, 16 Vet. App. 370 (2002). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). In November 2023, the Veteran filed his claim for tinnitus among other claims. In December 2023 the Veteran underwent a VA examination. The VA examiner reported that the "Veteran describes the tinnitus as a hum but sometimes goes to a more high-pitched sound. Veteran reports that sometimes makes it hard to sleep and sometimes makes it hard to concentrate on things." The examiner opined that the Veteran's tinnitus was less likely than not related to service because the examiner was unable to diagnose hearing loss due to invalid test results, and he found the Veteran's report of tinnitus onset being "present for years" was too vague. A March 2024 Rating Decision denied tinnitus based on the December 2023 VA examination but made the favorable finding that the Veteran has a current diagnosis of tinnitus. In April 2024, the Veteran filed a supplemental claim and included the new and relevant evidence of a private medical opinion. The Veteran's primary care provider stated that the Veteran has had bilateral tinnitus for the last 20 years. See Medical Treatment Record-Non-Government Facility, April 11, 2024. The July 2024 Rating Decision again denied the Veteran's service connection claim for tinnitus, relying on the previous December 2023 Rating Decision and ignoring the Veteran's private medical opinion. However, The AOJ made the favorable findings that: (1) the Veteran has tinnitus; (2) a qualifying event, injury, or disease had its onset during service (an MOS with a probability of military noise exposure); (3) tinnitus is a chronic disease which may be presumptively linked to military service; (4) the Veteran has sufficient service to meet the requirements for presumptive service connection; and , (5) the Veteran's tinnitus manifested to a degree of 10 percent or more following service. The Board is bound by these favorable findings. 38 C.F.R. § 3.104 (c) While the Veteran's service treatment records (STRs) do not show any complaints of, or treatment for, ringing in the ears while in service, the Veteran reported that his tinnitus started began in service and has continued to this day. The Board finds that the Veteran is competent to report the onset and progression of his tinnitus. In addition, although the July 2024 Rating Decision denied service connection for tinnitus, its findings show that all elements of entitlement to presumptive service connection have been met. Accordingly, entitlement to service connection for tinnitus is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Newton, A. 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.