Citation Nr: 1318632 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 13-03 222 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1960 to April 1962. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. 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 Affording the Veteran the benefit of the doubt, the currently diagnosed tinnitus is related to military service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C.A. § 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends he has tinnitus related to his military service, specifically his military occupational specialty (MOS) of Vehicle Wheel Mechanic that he claims exposed him to acoustic trauma. See, e.g., Veteran's Claim for Compensation, October 2010. Tinnitus is defined as "a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." Dorland's Illustrated Medical Dictionary 1930 (32nd ed. 2012). Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999). Pursuant to 38 C.F.R. § 3.303(b), when a chronic condition is present, such as tinnitus, a claimant may establish the second and third elements by demonstrating continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A claimant may rely on lay evidence "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, 492 F.3d at 1377. The Veteran's statements are competent evidence as to what he experiences; i.e., his statements are competent to report that he has experienced ringing in his ears. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). In October 2010, the Veteran submitted his claim, indicating he began to experience tinnitus during service. He did not report any treatment for the condition since service. The Veteran served as vehicle wheel mechanic with the Army and completed eight weeks of training. He claims his tinnitus is attributable to loud noise exposure he experienced as a mechanic. The Veteran states that he did not report his tinnitus while in service because at that time he was unaware that tinnitus was considered a disability. See Notice of Disagreement, September 2011. The Veteran claims that he has experienced tinnitus continuously since service. See id; Veteran's Claim for Compensation, October 2010; VA Form 9, January 2013. The Board finds no reason to doubt the Veteran's lay description of in-service noise exposure and the description is generally consistent with the known circumstances of his military service. Acoustic trauma in-service is conceded. His service treatment records (STRs) are silent as to any complaints, treatment or diagnoses of tinnitus. The Veteran's September 1958 and May 1960 induction examinations noted his ears were normal and the Veteran self-reported having no ear trouble. The Veteran's February 1962 separation examination noted his ears were normal and the Veteran self-reported no history of ear trouble. In July 2011, the Veteran underwent a VA audiological examination. The Veteran was diagnosed with bilateral sensorineural hearing loss and tinnitus. The examiner noted the Veteran served during peacetime, was unclear as to the date of onset of his tinnitus and not sure what the tinnitus sounded like. The examiner opined that due to an normal audiogram on separation from service and due to a lack of evidence of noise exposure during service, it is less than likely that the Veteran's hearing loss was due to in service acoustic trauma. The examiner found the Veteran's tinnitus at least as likely as not a symptom associated with the hearing loss. As previously stated, the Board has conceded that the Veteran was exposed to acoustic trauma during service. Therefore, the examiner's opinion lacks probative value as it does not consider the Veteran's conceded in-service acoustic trauma. Additionally, the examiner did not address the Veteran's lay statements regarding continuity of tinnitus since service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion). The Veteran is competent to report on in-service noise exposure, his current symptoms, and the history of those symptoms. Washington, 19 Vet. App. at 368. The Veteran has consistently stated that he has experienced tinnitus since service. See Veteran's Claim for Compensation, October 2010; Notice of Disagreement, September 2011; VA Form 9, January 2013. As discussed above, tinnitus is a condition that a lay person can describe because it is defined as a subjective noise in the ears. Charles, 16 Vet. App. at 374. Although during the July 2011 VA examination the Veteran stated he was unclear as to the onset date of his tinnitus, this is not inconsistent with his statements that the tinnitus began sometime during his two years of active military service. The Veteran has never provided an exact date of onset for his tinnitus, rather he has consistently stated that the tinnitus began at some point during military service. Additionally, the Veteran's statement that he did not report his tinnitus while in service as he was unaware it was considered a disability explains why there is no notation of tinnitus in the Veteran's STRs. Thus, the Board finds the Veteran credible with regard to his claim of incurrence of tinnitus in-service and continuity of tinnitus since service. A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. When the evidence "is in relative equipoise," the law dictates that the Veteran prevails. Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). The Board finds the evidence is in equipoise as to whether the Veteran's tinnitus is related to service. The evidence of record demonstrates that the Veteran has tinnitus, he was exposed to acoustic trauma in service and he has experienced tinnitus since service. In such circumstances, the benefit of the doubt goes to the Veteran; consequently, service connection is granted. 38 U.S.C.A. § 5107(b). The VA has statutory duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In light of the favorable action taken by the Board, any defects with respect to the duties of notice or assistance are non-prejudicial. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for tinnitus is granted. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs