200304-74699

• Court: Board of Veterans' Appeals
• Decided: February 26, 2021
• Docket: 200304-74699
• Status: Unpublished

Opinion

Citation Nr: AXXXXXXXX Decision Date: 02/26/21 Archive Date: 02/26/21

DOCKET NO. 200304-74699 DATE: February 26, 2021

ORDER

Service connection for tinnitus is granted.

FINDING OF FACT

The preponderance of the evidence supports finding the Veteran’s tinnitus began during service and continued since separation from service.

CONCLUSION OF LAW

The criteria for service connection for tinnitus are met. 38 U.S.C. § 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served active duty from January 1963 to January 1966.

A September 2018 rating decision denied service connection for tinnitus. In June 2019, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested review of a September 2018 rating decision based on new and relevant evidence. An August 2019 rating decision found new and relevant evidence was received and denied the claim based on the evidence of record at the time of that decision. In September 2019, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested review of the August 2019 rating decision based on new and relevant evidence. An October 2019 rating decision found new and relevant evidence was received and denied the claim based on the evidence of record at the time of that decision. In a March 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. The Veteran appeared for a hearing before the undersigned in November 2020. The hearing transcript is associated with the claims file. Therefore, the Board may only consider the evidence of record at the time of the October 2019 decision on appeal, as well as any evidence submitted by the at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a).

The October 2019 rating decision found new and relevant evidence was received to readjudicate the claim of service connection for tinnitus. This is a favorable finding by the AOJ and the Board will proceed to the address the claim on the merits. 38 U.S.C. § 5104A; 38 C.F.R. § 3.104(c).

Service connection for tinnitus

The Veteran contends tinnitus disability that began during service and continued since separation from service. See November 2020 hearing testimony.

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 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).

Certain chronic diseases, including tinnitus, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013).

The RO favorably found a diagnosis of tinnitus. Therefore, the question for the Board is whether the Veteran’s tinnitus manifested during service, manifested to a compensable degree within a year of separation from service, or is otherwise related to service.

The Board finds the preponderance of the evidence supports finding the Veteran’s tinnitus began during service and continued since separation from service.

An April 2018 VA treatment visit noted the Veteran was exposed to loud noise during service for 13 months. The clinician opined the Veteran’s exposure to launching and recurrent loud noise during service is more likely than not a contributing factor in his reported tinnitus.

At the November 2020 Board hearing, the Veteran reported no ringing in his ears prior to service, ringing in his ears started during service, and ringing in his ears continuing since service. The Veteran reported during service he worked as a missile launch repairman for 13 months. The Veteran reported his occupation after service was with computers and he was not exposed to loud noises.

The Court has specifically held that tinnitus is a type of disorder associated with symptoms capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). As such, the primary role of the Board in adjudicating the tinnitus claim is to assess the credibility of the Veteran's statements. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).

In this case, the Board finds no reason to doubt the credibility of the Veteran’s lay statements regarding the onset of his tinnitus. The statements are consistent with the Veteran’s treating clinician opining the Veteran’s exposure to launching and recurrent loud noise during service is more likely than not a contributing factor in the current reported tinnitus.

As the preponderance of the evidence is in support of the claim, service connection for tinnitus is granted.

KELLI A. KORDICH

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board T. Winkler, 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.