Citation Nr: 1237006 Decision Date: 10/25/12 Archive Date: 11/08/12 DOCKET NO. 10-25 254 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran served on active duty from May 1964 to July 1968, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, that, in pertinent part, denied the Veteran's claim. The Veteran filed a notice of disagreement dated in September 2009 and the RO issued a statement of the case dated in May 2010. The Veteran filed his substantive appeal in June 2010. The Board notes that, in addition to the Veteran's claims file, the Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file as well as the Veteran's claims file and will proceed with review of the claim based upon all relevant evidence. FINDING OF FACT Resolving all doubt in the Veteran's favor, tinnitus had its onset during active military service. CONCLUSION OF LAW Tinnitus was incurred during active military service. 38 U.S.C.A. §§ 1110, 1131, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.6, 3.159, 3.303 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.159 and 3.326(a) (2011). The Board concludes that the VCAA does not preclude the Board from adjudicating the Veteran's claim. This is so because the Board is taking action favorable to the Veteran by granting his service connection claim. See Bernard v. Brown, 4 Vet. App. 384 (1993). In light of the fact the Board allows the benefit sought on appeal, discussion of VA's compliance with the notice and assistance requirements of the VCAA, 38 U.S.C.A. § 5100 et seq. (West 2002 and Supp. 2011), would serve no useful purpose. II. Analysis Applicable law provides that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for certain chronic diseases when the disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). It is the Board's responsibility to evaluate the entire record on appeal. 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, reasonable doubt will be resolved in each such issue in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. An appellant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the evidence must preponderate against the claim. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Alemany v. Brown, 9 Vet. App. 518 (1996). For injuries alleged to have been incurred in combat, 38 U.S.C.A. § 1154(b) provides a relaxed evidentiary standard of proof regarding events that occurred during combat. Collette v. Brown, 82 F.3d 389 (1996). Specifically, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). The Board finds that, despite the lack of combat citations contained in the record, the USMC Combat history credited the Veteran with participation in combat operations. As such, the Board finds that the Veteran is qualified for application of the relaxed evidentiary standard of proof pursuant to 38 U.S.C.A. § 1154(b). In this case, the Veteran contends that he is entitled to service connection for tinnitus. Noise exposure in service is conceded. The Veteran's service treatment records do not indicate that the Veteran had tinnitus in service. After service, clinical records note the presence of tinnitus, but do not indicate whether this condition had its onset in service. A July 2009 VA examination report noted that the Veteran had a history of noise exposure during military service and noted that the Veteran reported onset of tinnitus in the military. Configuration of the audiogram was consistent with the accumulation of military, occupational, and recreational noise exposure as well as the effects of presbycusis. The examiner also noted that there was normal hearing bilaterally on entrance and separation examinations and opined that hearing loss and tinnitus were less likely as not initiated by noise exposure in the military. The examiner stated that this opinion was based in patient case history, claims file review, and configuration of the audiogram. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts that the lay witness observed and is within the realm of his or her personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (noting that lay testimony may be competent to identify a particular medical condition). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Here, the Veteran is competent to claim onset of tinnitus in service. While he suggests that tinnitus had its onset during basic training, he also notes that he was affected by artillery sounds in combat situations. There is nothing in the VA examination report that directly refutes the Veteran's history or his ability to recognize the onset of tinnitus. Resolving all doubt in the Veteran's favor, tinnitus had its onset in service. ORDER Service connection for tinnitus is allowed. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs