Citation Nr: A25041273 Decision Date: 05/06/25 Archive Date: 05/06/25 DOCKET NO. 240520-441985 DATE: May 6, 2025 ORDER Entitlement to service connection for tinnitus is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his tinnitus is at least as likely as not related to in-service hazardous noise exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1131, 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 from September 1979 to September 1982 and from March 1985 to May 1985. This matter comes before the Board of Veterans' Appeals (Board) from a June 2023 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). 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 denied in a May 2018 rating decision. In June 2023, the RO 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 May 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 June 2023 RO decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the RO 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, 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 The Veteran contends that his tinnitus is caused by exposure to hazardous noise while on active duty. Specifically, in May 2023, he stated that his military occupational specialty of tank crewman exposed him to varying levels of ear noise trauma to include tanks and track vehicles and that he was also exposed to hazardous noise from weaponry in basic training. He also stated that he was not always issued hearing protection. 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, 1131;?38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi,?381 F.3d 1163, 1166-67?(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 the disease was incurred in service. 38 C.F.R. § 3.303 (d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt should be given to the claimant.?38 U.S.C. § 5107 (b);?38 C.F.R. § 3.102. 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 should be resolved in favor of the claimant. See?38 C.F.R. § 3.102. As a preliminary matter, in the June 2023 rating decision on appeal, the RO conceded that the Veteran has been diagnosed with a disability (tinnitus) and that he was exposed to hazardous noise in service. Under the Appeals Modernization Act (AMA), the Board is bound by favorable findings made by the RO. 38 C.F.R. § 3.104 (c). Therefore, the remaining question is whether there is a nexus between the conceded in-service hazardous noise exposure and the Veteran's tinnitus. Resolving reasonable doubt in the Veteran's favor, the Board concludes that his tinnitus is related to conceded in-service hazardous noise exposure. There is evidence against and in favor of the claim. The evidence against the claim includes several VA medical opinions. In April 2018, a VA examiner opined that the Veteran's tinnitus is less likely than not caused by or a result of military noise exposure. The examiner acknowledged the Veteran's reported history of noise exposure as a rifleman with intermittent use of hearing protection but explained that there is no indication in the Veteran's e-file of tinnitus, either within the service, or within a year after discharge. In June 2023, a VA examiner also opined that the Veteran's tinnitus is less likely than not caused by or a result of military noise exposure. This examiner explained that the Veteran had normal hearing bilaterally in 1979, 1982, and 1985 with a standard threshold shift observed in the left ear during service and the Veteran reported pre- and post-military exposure to occupational noise. The examiner stated, "due to the timing of symptom onset in 2015 (25+ years post military) it is less likely than not that exposure to military noise caused the veteran's tinnitus." The examiner remarked that the Veteran does present with a diagnosis of clinical hearing loss, and his tinnitus is at least as likely as not associated with that condition, as tinnitus is known to be a symptom connected with hearing loss. The Board notes that the examiner commented that the Veteran reported use of hearing protection during his pre- and post-military occupational exposure. The Board notes that the Veteran is not service connected for hearing loss and that issue is not before the Board. The RO most recently denied service connection for bilateral hearing loss in a September 2024 decision. Additionally, the Board notes that the Veteran has provided conflicting statements as to the onset of his tinnitus symptoms. At the April 2018 VA examination, he reported that it happened a couple of times while in the tank unit, while at the June 2023 VA examination he reported that his symptoms began around 2015. The evidence in favor of the claim includes an April 2023 private medical opinion with accompanying medical literature. The private opinion stated that the Veteran's current bilateral tinnitus is at least as likely as not due to and/or related to military acoustic trauma during active-duty military service. The clinician stated that this opinion was based on a thorough review of service and/or civilian medical records, the current diagnosis of bilateral tinnitus, the Veteran's credible statement delineating noise exposures with acoustic trauma related to military occupational specialty and non-military occupational specialty activities during active duty military service with reports of tinnitus, the pathophysiology of tinnitus in relation to military acoustic trauma, and medical literature in support of the nexus based upon the pathophysiological mechanisms and processes that occur directly from prior acoustic trauma, due to cochlear deterioration and damage that leads to the development of tinnitus without typical hearing loss. The clinician referenced a 2006 study that indicated that an audiogram could be normal at two weeks or even months/years later following acoustic trauma and then years later, tinnitus could develop, related to the prior acoustic trauma, due to cochlear deterioration and damage that is undetectable by audiogram. The Board notes that the June 2023 VA examiner did not address this opinion or its accompanying medical literature. The Board finds no reason to afford more probative value to the negative VA medical opinions than to the positive private opinion, particularly given the June 2023 VA examiner's emphasis on normal audiograms during service while failing to address the April 2023 private opinion and accompanying medical literature supporting the presence of tinnitus in individuals with normal and abnormal audiograms. The Board also assigns low probative value to the April 2018 VA opinion because it relied solely on the lack of contemporaneous evidence (See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (stating that "[w]hen assessing a claim, the Board may not consider the absence of evidence as substantive negative evidence.") Additionally, neither examiner provided an alternate etiology of the Veteran's diagnosed tinnitus. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for tinnitus is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Wolfe, 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.