Citation Nr: 1305535 Decision Date: 02/15/13 Archive Date: 02/21/13 DOCKET NO. 09-26 103 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Whitehead, Counsel INTRODUCTION The Veteran served on active duty from May 1984 to October 1991 and from February 2003 to July 2003. He also had service in the Air National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In August 2012, the Veteran testified before the undersigned Veterans Law Judge during a Travel Board hearing held at the RO. A transcript of the hearing has been associated with the claims file. FINDINGS OF FACT 1. The Veteran was exposed to hazardous noise while serving as a pilot in the United States Air Force. 2. His current tinnitus was incurred as a result of his noise exposure during service. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION As the Board's decision herein to grant service connection for tinnitus constitutes a full grant of the benefit sought on appeal, no further action is necessary to comply with the Veterans Claims Assistance Act of 2000 and implementing regulations. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Where a disease is diagnosed after discharge, service connection may be granted when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to establish direct service connection, there must be medical evidence of a 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 C.F.R. § 3.304; see also Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Hickson v. West, 12 Vet. App. 247, 253 (1999). However, under C.F.R. § 3.303(b), the nexus element may be established based on medical or lay evidence where there is competent evidence of continuity of symptomatology. Barr, 21 Vet. App. at 307. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). In this case, the Veteran was exposed to hazardous noise while serving as a pilot in the United States Air Force, and his in-service exposure to acoustic trauma has been conceded. Indeed, he has been granted service connection for bilateral hearing loss based on such noise exposure. Furthermore, the Veteran is competent to report noise exposure, as this is issue is factual in nature and is observable by his own senses. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Barr, 21 Vet. App. at 307-08. As such, hazardous noise exposure during service has been established. Additionally, the evidence reflects a current disability of tinnitus, as established by the Veteran's lay testimony and confirmed in a March 2010 VA examination report. See Charles v. Principi, 16 Vet. App. 370 (2002) (stating that tinnitus is readily observable and does not require medical expertise to establish its existence). With respect to etiology, the Veteran's service treatment records reflect no complaints, treatment, or diagnosis of tinnitus. The Veteran also denied having tinnitus during an August 2007 VA examination. Indeed, he admits that he did not report having this condition during service or soon after his discharge. However, the Veteran states that he has had ringing in the ears continuously since service. During the August 2012 Travel Board hearing, the Veteran explained that he did not really understand or know what tinnitus was until after his discharge from the military. He testified that he believed his symptoms were normal considering his in-service exposure to noise from jets and weapons being fired while on the firing range. The Veteran also described the pessimism he felt as a pilot towards medical professionals during service due to the risk of being grounded because of hearing or medical issues. He essentially testified that this was one of the reasons why he failed to report having any hearing problems in service. See Hearing Transcript. During a March 2010 VA examination, the Veteran reported that his tinnitus began approximately ten to fifteen years prior. In addition to military noise exposure from jets and guns, the Veteran also reported that he worked as a commercial pilot following his separation from the military. Based on the Veteran's reported onset of tinnitus, a review of the service treatment records, and his August 2007 denial of having the disorder, the VA examiner opined that tinnitus was less likely as not caused by or a result of military noise exposure. During the August 2012 Travel Board hearing, however, the Veteran clarified that he first noticed his tinnitus symptoms early during his flying career but did not know anything about this condition. He testified that he noticed that his hearing was getting worse during service, and he began to use ear plugs to help alleviate the noise from the jets and the equipment in the cockpits. The Veteran also stated that in retrospect, his tinnitus was prevalent during his military service but he was more concerned at that time with any actual hearing loss and the anxiety that he experienced when he was seen for his annual hearing tests. He reported that he became more aware of the constant ringing in his ears over the previous fifteen years as he has gotten older. While the evidence dated prior to the Veteran's October 2009 claim for service connection does not include any reports of tinnitus, the Board does not find this to be fatal to the Veteran's claim. Indeed, the Board notes that the Veteran's statements as to continuity of symptomatology may not be deemed not credible solely due to the absence of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In this case, the Board finds the Veteran's reports of an in-service onset of his tinnitus and a continuity of symptomatology since that time to be credible in light of his August 2012 testimony. Considering all lay and medical evidence of record, the Board finds that the evidence is in relative equipoise as to continuity of symptomatology of the Veteran's tinnitus. Accordingly, the benefit of the doubt doctrine applies. When resolving all reasonable doubt in his favor, the evidence of record demonstrates that the Veteran was exposed to hazardous noise during service, he began to have symptoms of tinnitus during service, and he has had continuous symptomatology since that time. As such, a medical opinion is not necessary as to the etiology of the Veteran's tinnitus because the condition is readily observable by a lay witness. Therefore, service connection is warranted for tinnitus. 38 C.F.R. §§ 3.102, 3.303. ORDER Service connection for tinnitus is granted subject to the laws and regulations governing monetary awards. ____________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs