Citation Nr: 1301187	
Decision Date: 01/11/13    Archive Date: 01/16/13

DOCKET NO.  09-31 264	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUE

Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

David S. Ames, Counsel


INTRODUCTION

The Veteran served on active duty from January 2002 to June 2003, from June 2004 to May 2005, and from September 2007 to November 2008.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in Milwaukee, Wisconsin (RO).


FINDING OF FACT

The Veteran's tinnitus is presumed to have been incurred in active service.


CONCLUSION OF LAW

Tinnitus was incurred in active service.  38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012).  In addition, 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) (2012).  The determination as to whether the requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  Baldwin v. West, 13 Vet. App. 1 (1999).

Alternatively, under 38 C.F.R. § 3.303(b), service connection may be awarded for a chronic disability when (1) a chronic disease manifests itself and is identified as such in service, or within the presumptive period under 38 C.F.R. § 3.307, and the Veteran presently has the same condition; or (2) a disease manifests itself during service, or during the presumptive period, but is not identified until later, and there is a showing of continuity of related symptomatology after discharge, and medical evidence relates that symptomatology to the Veteran's present condition.  Savage v. Gober, 10 Vet. App. 488 (1997).  For certain chronic disorders, including organic diseases of the nervous system, such as tinnitus, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012).

In this case, the Veteran served three separate periods of active service, with the last period ending in November 2008.  In a May 2009 VA audiological examination report, the Veteran reported experiencing tinnitus since active service.  While the examination report did not specifically give a diagnosis of tinnitus, the examiner did confirm that the Veteran had a present report of tinnitus.  For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone.  Charles v. Principi, 16 Vet. App. 370 (2002).  If a Veteran reports ringing in his ears, then a diagnosis of tinnitus is generally applied without further examination.  Accordingly, the May 2009 VA audiological examination report constitutes a diagnosis of tinnitus for VA purposes.

Recurrent tinnitus warrants a 10 percent rating.  38 C.F.R. § 4.86, Diagnostic Code 6260 (2012).  Therefore, the Board finds that the evidence of record shows that tinnitus was diagnosed to a compensable degree within one year following the Veteran's last separation from active service.  Thus, the Veteran's tinnitus is presumed to have been incurred in active service.  38 C.F.R. §§ 3.307, 3.309 (2012).  Therefore, service connection for tinnitus is warranted.  38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Service connection for tinnitus is granted.



____________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs