Citation Nr: A25035402 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 240805-525702 DATE: April 17, 2025 ORDER Service connection for tinnitus is granted. FINDING OF FACT The Veteran's tinnitus began during active duty. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served in the United States Marine Corp from June 1994 to June 1998. This case comes to the Board of Veterans' Appeals (Board) on appeal from a July 2024 rating decision of a Department of Veterans Affairs (VA) Regional Office, which is an agency of original jurisdiction (AOJ). In the August 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket. As a matter of clarity, the Veteran initially filed two VA Form 10182 Notice of Disagreements (NOD) on August 5, 2024. The Veteran selected the direct review docket on one, and the evidence submission docket on the other. The Board requested clarification of which docket the Veteran wanted to elect via letter on September 5, 2024. On September 13, 2024, the Veteran filed a new NOD, selecting the evidence submission docket, and he attached a private medical opinion. The Board then erroneously sent the Veteran a letter on September 27, 2024 to advise him that his September 13, 2024, VA Form 10182 NOD was submitted on the incorrect; however, on April 8, 2025, the Board sent the Veteran a correction letter advising him that the September 27, 2024 letter was erroneously issued; and on the same day, issued a new docketing letter to the Veteran indicating that, per his clarification, his appeal was docketed at the Board on the Evidence Submission docket as of August 5, 2024. Therefore, the Board may only consider the evidence of record at the time of the July 2024 decision, as well as any evidence submitted by the Veteran or representative with, or within 90 days from receipt of, the updated September 18, 2024, VA Form 10182. 38 C.F.R. § 20.303. During that 90-day evidentiary window, the Veteran submitted additional evidence in support of his claim, including a September 2024 private medical opinion. If evidence was submitted either (1) during the period after the AOJ issued the decision and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for establishing service connection requires evidence of: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a causal relationship between the current disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be presumed for certain chronic diseases listed under 38 C.F.R. § 3.309(a) that manifest to a degree of at least 10 percent within the first post-service year. Additionally, there are other diseases that may be presumed for Veteran's who served in the Gulf War, including undiagnosed illnesses, for example, and diseases due to exposure to burn pits and other toxins. 38 U.S.C. §§ 1101, 1112, 1113, 1117, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a), 3.317. Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. Tinnitus may be considered an organic disease of the nervous system and is therefore considered a chronic disease for VA purposes. 38 C.F.R. § 3.309(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. Entitlement to service connection for tinnitus The Veteran contends that he has tinnitus caused by constant exposure to high levels of noise from jet engines during military service due to his Military Occupational Specialty (MOS) of Aircraft Mechanic. In a February 2024 statement, the Veteran stated that he first noticed ringing in his ears in 1997 after launching a flight of 5 aircraft. He also described being exposed to pistol and rifle fire while at the range. He described his tinnitus as a non-stop buzzing or ringing sound in his ears which affected his daily life and comfort. He reported that high-pitched ringing came at random times and that it can last anywhere from a few seconds to over a minute. He wrote that as of the date of that statement he was working in an office environment and has not been exposed to the same level of noise since service. The question before the Board is whether the Veteran's tinnitus began during a period of active service or is otherwise etiologically related to disease or injury in service. The service treatment records do not indicate any complaints, treatment, symptoms, or diagnoses related to tinnitus. On VA examination for hearing loss and tinnitus in in July 2024, the Veteran reported sudden onset of tinnitus in 1997 while on active duty after launching planes on a particular day in service. He described his tinnitus as a constant dull buzz with occasional high-pitched tone and reduced hearing. He was also noted to have mixed hearing loss and abnormal tympanometry. The examiner diagnosed tinnitus but could not opine whether the Veteran's tinnitus was related to military service, at that time, without resorting to speculation, because the Veteran's mixed hearing loss and abnormal tympanometry needed to be evaluated and treated by an ear, nose, and throat specialist before an informed medical opinion could be provided. In September 2024, the Veteran submitted a private medical opinion by Harriet Jacobster, an audiologist with Lyric Audiology and Health. She specializes in Advanced Diagnostics, Tinnitus and Sound Sensitivity Syndromes, and Auditory Processing Disorders. Dr. Jacobster noted that she was a former contractor for the VA system and was trained in the administration and interpretation of Compensation and Pension (C&P) exams at the Philadelphia VAMC. She has also reported serving as an expert witness in civil and military legal matters involving hearing loss and tinnitus. The opinion was not associated with an in-person examination, but it was based on a review of the Veteran's medical history and the circumstances of the Veteran's military service. The report included a detailed background of the Veteran which included his MOS as an aircraft mechanic, a description of his symptoms in service and at present, a review of the July 2024 VA examination report, the Veteran's pertinent medical history, which includes a history of tubes in his ear as an infant, and also included medical literature regarding tinnitus without hearing loss. Dr. Jacobster found that a middle ear pathology is less likely than not the cause of the Veteran's tinnitus. In finding so, she specifically noted that a mechanical conductive loss and an abnormal tympanogram (as noted by the July 2024 examiner) could have been caused by scarring from the removal or falling out of the Veteran's ear tubes during infancy. Regardless, she stated that the scarring is not a known cause of tinnitus and pointed out that the Veteran did not experience tinnitus during his childhood as a result of the tubes. However, Dr. Jacobster did not examine the Veteran to determine if the Veteran does have in fact have any scarring and the record does not otherwise reflect whether he does or does not. The actual cause of the abnormal tympanometry was not revealed. In addition, Dr. Jacobster referenced an August 15, 2024, exam at the Dallas Ear Institute by an Otolaryngologist (ENT) Dr. Brian Robert Peters, and an accompanying audiological evaluation which revealed normal tympanometry; however, this examination report is not a part of the record. Dr. Jacobster noted that the August 2024 examination revealed tympanometry that revealed normal middle ear compliance and tympanic membrane mobility in each ear. Given that the existence of this report supports Dr. Jacobster's opinion that the Veteran's tinnitus onset in service, as opposed to being caused by a middle ear pathology, reasonable doubt will be resolved in the Veteran's favor. 38 C.F.R. § 3.102. Dr. Jacobster opined that excessive noise exposure during service is more likely than not the cause of the Veteran's tinnitus given the onset in 1997 while on active duty, his excessive noise exposure during service, and the Veteran's credible reports of continuity. The record does not contain an opinion to the contrary or evidence that would otherwise diminish the probative value of this opinion. In short, the audiologist holds herself out as an expert in the field of tinnitus etiology, she reviewed the entire file, and the Veteran's self-reported history, and based her opinion on sound medical principles supported by medical treatise evidence and her own expertise. Accordingly, the Board assigns this opinion high probative value. In the case of a wholly lay-observable disability such as tinnitus, the Veteran is competent to report both its onset date and its persistence since that date. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). The record does not reveal evidence that contradicts the Veteran's statements. Furthermore, there is no reason to doubt the Veteran's credibility as to the onset and continuity of his tinnitus. As such, the Veteran's reports as to the onset of symptoms in service, as well as the continuity of his symptoms since service, are credible and are entitled to significant probative weight. The Board is not persuaded by the July 2024 examiner's assertion that an ENT examination was necessary to render an opinion, given Dr. Jacobster's highly opinion that the Veteran's tinnitus onset in service due to excessive noise exposure and ruling out middle ear pathology as the cause of the tinnitus. There is sufficient evidence to warrant a grant of service connection for tinnitus based on the Veteran's credible lay statements and the highly probative September 2024 private medical opinion by Dr. Jacobster. In sum, the lay and medical evidence of record support a finding that the Veteran's tinnitus, which was diagnosed after discharge, onset during active duty. The Veteran competently and credibly reported that he first noticed tinnitus in service, and a private medical opinion found the Veteran's tinnitus to be as least as likely as not related to his period of active-duty service. The record does not reveal any lay or medical evidence to the contrary. Accordingly, when all reasonable doubt is resolved in the Veteran's favor, service connection for tinnitus is warranted. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A. Feroce 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.