Citation Nr: 1034294 Decision Date: 09/13/10 Archive Date: 09/21/10 DOCKET NO. 08-34 930 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Stacey R. Laskin, Law Clerk INTRODUCTION The Veteran served on active duty from March 1969 to November 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in May 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. FINDING OF FACT The evidence for the Veteran's claim for entitlement to service connection for tinnitus is at least in equipoise. CONCLUSION OF LAW The Veteran incurred tinnitus in active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) sets forth the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. First, VA has a duty to notify the Veteran of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103 (West 2002); 38 C.F.R. § 3.159(b). Second, VA has a duty to assist the Veteran in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c). As discussed in detail below, sufficient evidence is of record to grant the claim on appeal. Therefore, no further notice or development is needed with respect to this appeal. The Merits of the Claim The Board finds that the Veteran has recurrent tinnitus that began during and has continued since active service. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In order for a veteran to prevail on the merits for a service- connection claim, the Board must find medical evidence of current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disability. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Lay evidence of in-service incurrence or aggravation may serve to support a claim for service connection by demonstrating the occurrence of lay-observable events or the presence of disability, or symptoms of disability, capable of lay observation, such as those seen in this case. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). Additionally, when, as in this case, a veteran served in combat, VA shall accept satisfactory lay or other evidence of service incurrence or aggravation of an injury or disease as sufficient proof of service connection, so long as the alleged injury or disease is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C.A § 1154(b). This applies notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, VA shall resolve every reasonable doubt in favor of the veteran. Id. In-service incurrence of such injury or disease may be rebutted only by clear and convincing evidence to the contrary. Id. A veteran is also considered competent to report that he or she experienced ringing in his or her ears in service and that he or she has experienced such ringing ever since service. Charles v. Principi, 16 Vet. App. 370, 374 (2002). Here, the Veteran's DD Form 214 reflects that the Veteran was a Light Weapons Infantryman during the Vietnam conflict. He also received the Combat Infantryman's Badge, which is per se determinative of combat participation. 38 U.S.C.A. § 1154(b). In a September 2007 claim, the Veteran contends he was not provided proper ear protection in service and that he has experienced tinnitus since his exposure to acoustic trauma in service. Again, at a May 2008 VA examination, the Veteran reported hearing loss and a high-pitched ringing sound occurring mostly in the late evening or early morning that he had noticed during and since service. The VA audiologist determined that the Veteran's hearing was almost completely normal at the time of examination despite the Veteran's history of acoustic trauma in the form of combat service, factory work, and recreational hunting. The Board finds that the Veteran's descriptions of acoustic trauma are credible and consistent with the circumstances, conditions, and hardships of his service, despite the VA examiner's findings and although no symptoms of tinnitus were reported during service. See 38 U.S.C.A § 1154(b). As there is competent and credible evidence of record that the Veteran has experienced ringing in his ears from his period of active service forward, and competent medical evidence in a May 2008 VA examination that indicates the claimed condition is tinnitus, VA finds that entitlement to service connection for tinnitus is warranted. In reaching this decision, the Board has considered the doctrine of reasonable doubt and determined that the evidence is at least in equipoise. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). ORDER Service connection for tinnitus is granted. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs