TINNITUS

Summary

The Veteran, who served from May 1985 to September 1985 and again from October 1990 to April 1991, including a six-month deployment to Desert Storm, appeals the denial of service connection for tinnitus. The Veteran claims tinnitus resulted from exposure to loud noise while working on the flight line during service. Service treatment records did not document any symptoms or treatment for tinnitus. However, private treatment records from May 2012 noted tinnitus and a history of noise-induced trauma. The Veteran also reported tinnitus during VA examinations in August 2013 and February 2016, stating it began during service or about a year prior. The Board found the July 2014 VA examiner's opinion inadequate for relying solely on the onset date without further explanation. The February 2016 VA examination, while noting inconsistent onset reports, was considered more probative due to the Veteran's credible reports of flight line noise exposure during Desert Storm. The Board found the evidence to be in equipoise regarding the service connection of tinnitus, affording the Veteran the benefit of the doubt. Consequently, service connection for tinnitus was granted.

Rationale

Evidence in equipoise; Benefit of the doubt afforded; July 2014 VA exam inadequate; Feb 2016 VA exam more probative

Full Decision Text

Citation Nr: 22061184
Decision Date: 11/01/22	Archive Date: 11/01/22

DOCKET NO. 18-16 444
DATE: November 1, 2022

ORDER

Service connection for tinnitus is granted.

FINDING OF FACT

The Veteran's tinnitus is related to military service.

CONCLUSION OF LAW

The criteria for service connection for tinnitus are met.  38 U.S.C. §§ 1101, 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2021).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from May 1985 to September 1985 and from October 1990 to April 1991.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

In her March 2018 substantive appeal, the Veteran requested a hearing before the Board.  A hearing was scheduled for February 2022.  In correspondence received in December 2021, the Veteran withdrew her hearing request.  Her appeal may therefore be adjudicated.  

Entitlement to service connection for tinnitus

The Veteran claims service connection for tinnitus.  

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection requires:  (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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995).  Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

For certain chronic diseases, including organic diseases of the nervous system such as tinnitus, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service.  38 C.F.R. §§ 3.307(a)(3), 3.309(a).  When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time.  When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a).  38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether the evidence is persuasively against the claim, in which case the claim is denied.  38 U.S.C. § 5107; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.

Service treatment records do not reflect any symptoms of or treatment for tinnitus.

Private treatment records reflect that in May 2012 the Veteran reported right-ear tinnitus over the prior several weeks and a history of noise-induced trauma from working in the military.  VA treatment records reflect that in August 2013 the Veteran reported bilateral tinnitus, worse in the right ear, that began about one year prior.

In a March 2014 statement, the Veteran reported tinnitus due to in-service exposure to loud noise while working on the flight line.

The Veteran underwent a VA examination in July 2014.
 is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.

Service treatment records do not reflect any symptoms of or treatment for tinnitus.

Private treatment records reflect that in May 2012 the Veteran reported right-ear tinnitus over the prior several weeks and a history of noise-induced trauma from working in the military.  VA treatment records reflect that in August 2013 the Veteran reported bilateral tinnitus, worse in the right ear, that began about one year prior.

In a March 2014 statement, the Veteran reported tinnitus due to in-service exposure to loud noise while working on the flight line.

The Veteran underwent a VA examination in July 2014.  She reported tinnitus, constant on the right and occasional on the left.  She stated that it began about four years ago.  The examiner opined that tinnitus was less likely than not related to service.  This opinion was based on the rationale that there was no tinnitus in service, and it did not begin until about 2010.

In an August 2015 statement, the Veteran stated that she was deployed to Desert Storm for six months, during which she was exposed to long hours working on the flight line as aircraft came and went.  She stated that she used earplugs and earmuffs, but these were of limited effectiveness.  

The Veteran underwent another VA examination in February 2016.  She reported tinnitus that began during service.  The examiner opined that tinnitus was at least as likely as not related to service.  This opinion was based on the rationale that she was deployed to Desert Storm for six months working on the flight line.

Private treatment records reflect that in April 2016, the Veteran reported tinnitus that she developed after serving in Saudi Arabia.  Her otolaryngologist was unable to offer an opinion without review of her service treatment records.

As an initial matter, the Board notes that service connection for tinnitus was initially denied in a September 2014 rating decision and again in a February 2016 rating decision.  The Board need not determine whether her claim may be reopened, however, because neither of these decisions became final.  Specifically, in September 2015 the Veteran submitted audiological treatment records, and the Veteran's February 2016 VA examination opinion appears to have been created in March 2016.  In both cases, this new and material evidence submitted during the one-year appeal periods abrogated the finality of the decisions.

The Board finds that the evidence is at least in equipoise as to whether the Veteran's tinnitus is related to her service.  The July 2014 examiner's opinion is inadequate because it relies wholly on when tinnitus arose without any further explanation.  The February 2016, while based in part on the Veteran's inconsistent reports of onset date, discusses her credible reports of exposure to loud noise while serving.  As such, it is the most probative medical evidence in the record.  For these reasons, the Board finds that the evidence is at least in equipoise as to whether the Veteran's tinnitus is related to service, and service connection is therefore granted. 

 

J. GALLAGHER

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Wimbish, 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.