Citation Nr: A25035401 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 240820-465434 DATE: April 17, 2025 ORDER Entitlement to service connection for tinnitus is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, the Veteran's tinnitus disability is attributable to hazardous noise exposure during service. CONCLUSION OF LAW The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 2000 to June 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2023 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO); therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In May 2023, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of entitlement to service connection for tinnitus most recently addressed in a February 2023 rating decision. In August 2023, the agency of original jurisdiction (AOJ) issued the supplemental claim decision on appeal, which found that new and relevant evidence had been received and denied the claim based on the evidence of record at the time of that decision. 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 August 2023 agency of original jurisdiction (AOJ) supplemental claim 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[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Entitlement to service connection for tinnitus is granted. The Veteran filed an October 2022 claim for service connection for tinnitus. See October 2022 VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits. The Veteran seeks service connection for tinnitus due to hazardous noise exposure during service. A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection can also be established on a presumptive basis in cases where a veteran served continuously for 90 days or more during active service and certain chronic diseases that become manifest to a degree of 10 percent within one year from the date on which the veteran separated from service, even if there is no evidence of the chronic disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. Under 38 C.F.R. § 3.303(b), claims for chronic diseases enumerated in 38 C.F.R. § 3.309(a) benefit from a relaxed evidentiary standard. See Walker v. Shinseki, 708 F.3d 1331, 1339 (Fed. Cir. 2013). To show a chronic disease in service, the record must contain a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Continuity of symptomatology is required only where the condition noted during service or in the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). If a chronic condition is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of the chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed. Walker at 1336; 38 C.F.R. § 3.303(b). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The claimant is entitled to the benefit of the doubt when there is an "approximate" (meaning nearly equal) balance of positive and negative evidence regarding any material determination. See Lynch v. McDonough, 999 F.3d 1391 (2021); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). If the evidence persuasively weighs against the claim, the claim is denied. At the outset, the Board acknowledges the agency of original jurisdiction (AOJ) favorably found that the Veteran had a qualifying event shown in service, namely exposure to hazardous noise in service. See August 2023 rating decision. The Board is bound by the AOJ's favorable finding(s) of fact. Further, the Veteran's service personnel records indicate that the Veteran had a military occupational specialties (MOS) as a petroleum supply specialist. See DD-214. Therefore, the second element of service connection is met. Further, the Board acknowledges the agency of original jurisdiction (AOJ) favorably found that the Veteran has a diagnosis for tinnitus. See August 2023 rating decision. Of record is a November 2022 VA examination with a diagnosis of tinnitus. See November 2022 VA examination. Therefore, the first element of service connection is met. In regard to the third element of service connection, a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the Board finds that the evidence of record for and against the Veteran's claim are in relative equipoise. The Veteran was afforded a VA examination in November 2022. The examiner noted a diagnosis of tinnitus. The examiner opined that it is less likely than not that the Veteran's tinnitus was caused by or a result of military noise exposure. The examiner noted that there are no complaints or reports of tinnitus in the Veteran's medical records. The Veteran is not required to show that tinnitus was present during active military service in order to establish service connection. Rather she may establish the required nexus between her current tinnitus and her term of military service by showing that her current tinnitus resulted from personal injury suffered in the line of duty. In a January 2023 VA medical opinion, the clinician opined that it is less likely than not that the Veteran's current tinnitus disability was incurred in or caused by the claimed in-service injury, event, or illness. The clinician noted that there were no threshold shifts in the military and hearing levels during service which suggests no damage to the auditory system. Further, there are not studies to support delayed onset of tinnitus. The Veteran is not required to show that tinnitus was present during active military service in order to establish service connection. Rather she may establish the required nexus between her current tinnitus and her term of military service by showing that her current tinnitus resulted from personal injury suffered in the line of duty. In a May 2023 lay statement, the Veteran reported having a high-pitched ringing in both ears that is constant. She reported being exposed to frequent varying levels of ear noise trauma during service and that she was not always provided hearing protection. A Veteran is competent to state that she has had ringing in the ears since service because ringing in the ears is capable of lay observation. Charles v. Principi, 16 Vet. App. 370, 374 (2002); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). In a May 2023 medical opinion, the clinician opined that the Veteran's current tinnitus condition is at least as likely as not due to and/or related to military acoustic trauma during active-duty military service. The clinician noted that current medical literature states that many people suffering from tinnitus present without typical cochlear damage, and thus exhibit normal parameters on audiograms. The clinician's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran was afforded a VA examination in July 2023. The examiner opined that it is less likely than not that the Veteran's current tinnitus disability was caused by or a result of military noise exposure. The examiner noted that the Veteran's MOS had a low probability of noise exposure and military records show normal hearing with no evidence of significant threshold shift during active duty. The examiner further noted that the Veteran's military records are silent for complaints of tinnitus symptoms and tinnitus was denied in 2019. The Board notes that noise exposure due to the Veteran's MOS has been conceded. Further, the Board notes that the Veteran is not required to show that tinnitus was present during active military service in order to establish service connection. As discussed above, the claimant is entitled to the benefit of the doubt when there is an "approximate" (meaning nearly equal) balance of positive and negative evidence regarding any material determination. See Lynch v. McDonough, 999 F.3d 1391 (2021); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). As the evidence for and the evidence against the Veteran's claim is in relative equipoise, the Board affords the Veteran the benefit of the doubt and finds there is evidence establishing a link between the Veteran's current tinnitus disability and her in-service noise exposure. Accordingly, the Board finds that a grant of service connection for tinnitus is warranted. J. NICHOLS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Fuller, 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.