Citation Nr: 1317580 Decision Date: 05/30/13 Archive Date: 06/06/13 DOCKET NO. 10-16 256 ) 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: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran had active service from April 1955 to April 1959. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The RO in Atlanta, Georgia, has jurisdiction of the claims file. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The competent medical, or competent and credible lay, evidence of record demonstrates that the Veteran's tinnitus is related to active duty. CONCLUSION OF LAW Tinnitus was incurred during active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION 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 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. A veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection also is permissible for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b) . Based on a thorough review of the record, the Board finds that the evidence supports the Veteran's claim. The Veteran's service personnel records reflect that he served on an aircraft carrier. His assertion of exposure to acoustic trauma in service is consistent with the circumstances of his military service. 38 U.S.C.A. § 1154(a) (West 2002). The Board finds that the Veteran was exposed to acoustic trauma in service. In an April 2010 VA Form 9, the Veteran stated that he had suffered from tinnitus since leaving the Navy. He explained that he did not understand what the sound really was until much later and it became more pronounced. He was told that no one could treat it, so he lived with it. He stated that his military occupation exposed him to high pitch noises from aircraft and big guns firing, as well as the constant noises produced on ships from motors and equipment. The Veteran is competent to testify that his observable symptoms began during service and have continued to the present. See Falzone v. Brown, 8 Vet. App. 398, 405 (1995). The Board finds him to be credible in this regard. Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). Additionally, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Further, 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 (Fed. Cir. 2007). Thus, in this case, the Board finds that the Veteran's testimony is competent and credible lay evidence that his current tinnitus began during active duty, and has existed since that time. A January 2010 addendum to a November 2009 VA examination provides that tinnitus reportedly began at least a few years earlier. The examiner stated that it was more likely than not that the tinnitus was a symptom associated with the Veteran's current hearing loss. The examiner also stated that because separation whispered voice tests were insensitive to high frequency hearing loss, it was not possible for her to state if the Veteran's current hearing loss was related to military service without resort to mere speculation. The Board finds that this opinion does not outweigh the Veteran's credible testimony. Significantly, the examiner does not state that it was less likely than not that the Veteran's tinnitus was related to his active duty. Rather, she merely associated it with his hearing loss. She does not state that his hearing loss was not related to active duty. In this regard, no rating decision has denied service connection for hearing loss. In light of the foregoing credible lay evidence that the Veteran incurred tinnitus during active duty, the Board finds that service connection for tinnitus is warranted. ORDER Service connection for tinnitus is granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs