Citation Nr: 1312707 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 10-24 850 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his Spouse ATTORNEY FOR THE BOARD G. A. Wasik, Counsel INTRODUCTION The Veteran served on active duty from October 1956 to July 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). FINDING OF FACT The Veteran's tinnitus is related to his active naval service. CONCLUSION OF LAW Tinnitus was incurred in active duty. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As a preliminary matter, the Board notes that the Veteran has been provided all required notice, to include notice pertaining to the disability-rating and effective-date elements of his claim. In addition, the evidence currently of record is sufficient to substantiate his claim. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012) or 38 C.F.R. § 3.159 (2012). Legal criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In reviewing the evidence, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage v. Gober, 10 Vet. App. 488, 496 (1997), citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual background The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The service treatment records are negative for evidence of tinnitus. In August 2008, the Veteran submitted a claim of entitlement to service connection, in pertinent part, for tinnitus. He indicated on his application that the disorder began in December 1956. In September 2008, the Veteran submitted a written statement indicating that he served on a gunnery crew prior to working as a radio operator during active duty. He reported he was exposed to acoustic trauma from exposure to the firing of 40 millimeter guns. Associated with the claims file are numerous statements from fellow servicemen who reported that they served with the Veteran in 1957 where he was assigned to a gun crew and exposed to loud noises. On VA examination in May 2009, the Veteran informed the examiner that he was exposed to the firing of 5 inch and 40 millimeter guns on board a destroyer. He also performed as a radio operator listening to Morse code. He denied post-service noise exposure. He reported that he gets a slight ringing in his ears when he shakes his head. The examiner found that this was questionable tinnitus. The examiner noted in the examination report that there was not a current complaint of tinnitus. The examiner found that, as the Veteran denied true tinnitus, it was less likely as not that the tinnitus was caused by or a result of his active service. In June 2011, the Veteran complained of bilateral tinnitus when he moved his head. Associated with the claims file is a May 2012 medical record from a private health care provider which indicates that the Veteran reported he had tinnitus and hearing loss for more than 30 years. It was noted that the Veteran worked as a radio operator and also had artillery exposure while on active duty. The pertinent assessment was tinnitus. In May 2012, a private physician wrote that he had evaluated the Veteran with regard to noise-induced hearing loss during active duty. After physical examination and review of an audiogram, the physician opined that the Veteran had tinnitus and sensorineural hearing loss as a result of noise-induced trauma while he was on active duty. The Veteran testified before the undersigned in February 2013 that he did not experience tinnitus prior to his active duty service. His first assignment on board his ship was in the gunnery department on a 40 millimeter gun. The guns were fired frequently. He also reported acoustic trauma while working as a radio operator. He first noticed ringing in his ears in 1957. The ringing in his ears was ongoing and continuous after his discharge from active duty. The Veteran's spouse, whom he married in 1981, testified that for as long as she knew him, he had complained of ringing in his ears. The Veteran testified that he was not exposed to any type or acoustic trauma after his discharge. Analysis Initially, the Board finds that the Veteran's report of exposure to the firing of guns on the ship he was assigned to as well as the noise exposure from being a radio operator during service is credible and establishes he was exposed to acoustic trauma while on active duty. The buddy statements submitted by the Veteran support the Board's determination. The medical evidence is conflicting regarding whether the Veteran has tinnitus. The examiner who conducted the May 2009 VA examination found the Veteran did not have the disorder and the private physician who wrote the May 2012 letter in support the Veteran's claim affirmatively found the Veteran had tinnitus. Additionally, the May 2012 private clinical record also includes a diagnosis of tinnitus. Neither the opinion supporting the claim nor the opinion against the claim is more probative than the other. Both are based on physical examination and history of noise exposure and symptoms provided by the Veteran. Under this fact pattern, the Board determines that the evidence is in relative equipoise with regard to whether the Veteran has tinnitus. As there is an approximate balance of positive and negative evidence regarding the question of the existence of tinnitus, the Board finds the Veteran should be given the benefit of the doubt and finds, therefore, that the Veteran does have tinnitus. Moreover, in view of the Veteran's credible testimony and the medical opinion linking his tinnitus to in-service noise exposure, the Board concludes that service connection is warranted for the Veteran's tinnitus. ORDER Entitlement to service connection for tinnitus is granted. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs