Citation Nr: A25035173 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 241007-482116 DATE: April 16, 2025 ORDER Service connection for tinnitus is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his tinnitus is related to his in-service hazardous noise exposure. CONCLUSION OF LAW The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 2009 to July 2014. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2023 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). As background, in a November 2022 rating decision, the AOJ denied entitlement to service connection for tinnitus. In December 2022, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of the November 2022 decision. In a February 2023 Higher-Level Return Review, a Higher-Level Reviewer determined that there had been a duty to assist error and transferred the claim to the Supplemental Claim decision review lane for additional development. In the February 2023 rating decision, the Agency of Original Jurisdiction (AOJ) deferred the claim. In October 2023, the AOJ issued the supplemental claim rating decision, in which they found that new and relevant evidence had been received, but continued the denial of the appeal. In the October 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 October 2023 AOJ supplemental claim rating decision on appeal. 38?C.F.R. § 20.301. If evidence was submitted after the AOJ issued the supplemental claim decision on appeal, the Board did not consider it in its decision. 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, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. The Board's grant of service connection for tinnitus is considered a full grant of the benefit sought on appeal. The AOJ will set the effective date of service connection. see Evans v. West, 12 Vet. App. 396 (1999) (effective dates are a "downstream matter" to be addressed after a benefit has been granted). Entitlement to service connection for tinnitus is granted. The Veteran suggests that his tinnitus is due to in-service acoustic trauma from exposure to hazardous noise from weapon fire and loud machinery. See July 2022 VA Form 21-526EZ Application for Disability Compensation and Related Compensation Benefits. 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 veteran seeking compensation under these provisions must establish three elements: "(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." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In the November 2022 rating decision, the AOJ made favorable findings that the Veteran has a current tinnitus disability, and that that the evidence shows a qualifying event, injury, or disease had its onset during his service, namely, that the Veteran had in-service hazardous noise exposure. Under the AMA, any favorable finding made by the AOJ is binding on all subsequent AOJ and Board adjudicators, unless rebutted by evidence that identifies a clear and unmistakable error in the favorable finding. The Board accepts the AOJ's favorable findings in these matters. The Veteran had a VA Hearing Loss and Tinnitus examination in August 2022. The Veteran reported that his tinnitus began during in 2009 [during his active service] when he was exposed to the sound of weapon fire. The VA examiner opined that it was less likely than not that the Veteran's tinnitus was caused by or the result of military noise exposure. The rationale was that the Veteran's service treatment records do not show a significant permanent threshold shift in hearing acuity from entrance to separation from service, and there is no evidence of in-service auditory damage. The examiner also noted that the Veteran's hearing was within normal limits when tested on the day of the examination. This opinion is inadequate because it is based solely on the absence of documentation of hearing loss in the record and does not take into account the Veteran's reports of symptoms and history. Dalton v. Peake, 21 Vet. App. 23 (2007). Additionally, the examiner did not explain why it was relevant that the Veteran's hearing was normal on the day of the examination. A medical opinion is not considered probative unless it includes clear conclusions and supporting supporting data with a reasoned analysis connecting the data and conclusions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board affords this opinion no probative weight. In May 2023, the AOJ issued a Toxic Exposure Risk Activity (TERA) Memorandum, finding that the Veteran had participated in a TERA. As previously noted, in the February 2023 Higher-Level Return Review, the Higher-Level Reviewer determined that there had been a duty to assist error and transferred the claim to the Supplemental Claim decision review option for additional development. Specifically, the Higher-Level Reviewer found that the AOJ needed to obtain VA opinions regarding whether the Veteran's tinnitus is due to his exposure to loud generators and working in a Patriot missile unit in Kuwait, and/or due to his TERA. In a May 1, 2023 VA opinion, a VA examiner opined that the Veteran's tinnitus was not at least as likely as not caused by his TERA, including known Southwest Asia exposures including sand, dust, particulate matter, fuels, fumes, pollution, burn pits, etc. and that these exposures are not known to cause tinnitus. The examiner stated that the most common cause of tinnitus is due to noise trauma. The Board affords this opinion some probative weight as it relates to the issue of whether the Veteran's tinnitus is due to his in-service hazardous noise exposure. On May 15, 2023, the Veteran had another VA Hearing loss and Tinnitus examination. The Veteran reported that he first noticed his tinnitus during his 2011 deployment to Kuwait, and that it has stayed the same since its onset. The VA examiner opined that it was at least as likely as not that the Veteran's tinnitus was caused by or the result of military noise exposure. In relevant part, the rationale that tinnitus may occur following a single exposure to high intensity impulse noise, long term exposure to repetitive impulses, long-term exposure to continuous noise, or exposure to a combination of impulses and continuous noise. The Board finds that this opinion contains a clear conclusion with supporting data with a reasoned analysis connecting the data and conclusions, and affords it high probative weight. See Nieves-Rodriguez at 304. Although the Board finds that the May 15, 2023 VA examiner's opinion is sufficient to grant the claim, the Veteran also submitted a private medical opinion dated August 4, 2023, by examiner A. M., who opined that the Veteran's tinnitus is at least as likely as not due to his military acoustic trauma. The opinion is also supported by an adequate rationale. In sum, there is evidence of in-service acoustic trauma and continuous symptoms of tinnitus since service, as well as competent medical evidence of a direct relationship between the current tinnitus and the in-service acoustic noise exposure. Resolving any reasonable doubt in favor of the Veteran, the claim is granted on a direct incurrence basis. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. John R. Doolittle, II Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Susan E. Leary 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.