Citation Nr: 1303207 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 09-13 118 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The Veteran served on active duty from March 1966 to December 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision entered in July 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, denying on the merits the Veteran's claim for service connection for tinnitus. The RO therein considered the Veteran's claim on a de novo basis, without finalizing a prior denial of service connection for tinnitus in August 2006 due to a failure of the rating authority to consider and cite the report of a private medical professional that was of record. On that basis, the Board herein addresses the matter as an original claim for service connection. Pursuant to his request, the Veteran was afforded a hearing before the Board, sitting at the RO, in October 2012. A transcript of that proceeding is of record. Although already of record, the Veteran submitted at that hearing a June 2006 report from a private medical professional, which previously was of record, along with a waiver for initial RO consideration. FINDINGS OF FACT 1. The Veteran was subject to inservice acoustic trauma. 2. There is credible and probative evidence that the Veteran has had tinnitus since he was exposed to inservice acoustic trauma and the record is at least in relative equipoise as to the service incurrence of his tinnitus. CONCLUSION OF LAW Tinnitus was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION As the disposition herein reached is favorable to the Veteran-appellant, the need to discuss the VA's efforts to comply with the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000), as codified in the United States Code, its implementing regulations, or the body of law interpretive thereof, is obviated. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. For certain chronic disorders, such as an organic disease of the nervous system, 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). 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). There is a current disability for VA purposes when an appellant is shown to have that disability at the time his or her claim was filed or during the pendency of that claim, even if that disability subsequently resolves. McClain v. Nicholson, 21 Vet. App. 319 (2007). Alternatively, the nexus between service and the current disability can be satisfied by medical or lay evidence of continuity of symptomatology and medical evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999). By this appeal, the Veteran seeks service connection for tinnitus on the basis of inservice acoustic trauma. According to the Veteran's statements of record and his hearing testimony of October 2012, that trauma resulted from excessive noise levels associated with aircraft, which the Veteran maintained or repaired in connection with his inservice duties as an avionics technician. Use of hearing protection was made, but not in all instances, particularly during the early years of his military career when working on or near jet engines. Tinnitus was first noted by him in service and it progressed to the point that its presence was constant at a point approximately four to five years following service discharge. The Veteran's original claim for service connection for tinnitus was received by VA in December 2006. In connection with that claim, the Veteran submitted to the RO in July 2006 a report from a private physician in the specialty of ear, nose, and throat diseases. Therein, tinnitus of both ears was diagnosed and it was the private physician's opinion that the Veteran's tinnitus was more likely than not related to his military noise exposure. It was set forth by that physician that the Veteran's postservice employment was as a prison worker, with no significant noise exposure occurring therewith. Service treatment records of the Veteran, to include the reports of medical examinations performed at service entrance and separation, are entirely negative for a complaint, finding, or diagnosis of tinnitus. The Veteran was afforded a VA audiological examination in August 2006, when he reported a history of noise exposure while serving in the military, but denied any occupational or recreational noise exposure. It was also noted that the Veteran had tolerated his tinnitus "pretty well" for eight years and made use of the television audio during sleeping hours to mask his tinnitus. The recorded diagnosis was of bilateral tinnitus and it was the VA examiner's opinion that it was less likely than not that the Veteran's tinnitus was due to military noise exposure on the basis that the reported date of onset of tinnitus did not coincide with the dates of military service. Analysis of the record indicates that the Veteran was subject to inservice acoustic trauma while in military service, but not thereafter. He is shown to have current disability involving tinnitus. He offers an account that his tinnitus was present in service and became constant within just a few years of his service separation. Clearly, the Veteran is competent to testify as to those things that come to him through his senses, such as the occurrence of acoustic trauma or his experiencing of tinnitus now and in the past, see Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). Moreover, his account is credible and probative, notwithstanding that the VA examiner in 2006 determined that the onset of the Veteran's tinnitus did not coincide with his military service. The Board takes note of the fact that a grant of service connection for tinnitus need not be predicated upon an actual showing of its onset in service, only that its onset is attributable to service or some event occurring in service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). And, in this case, a private physician who specializes in the treatment of ear diseases has determined that the Veteran's tinnitus is more likely than not the result of inservice acoustic trauma. Inasmuch as the evidence is at least in relative equipoise as to the question of the service incurrence of the Veteran's tinnitus, the Board resolves reasonable doubt in the Veteran's favor and grants service connection for tinnitus. ORDER Service connection for tinnitus is granted. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs