Citation Nr: 1319920 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 09-30 513 ) 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: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from April 1966 to April 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board remanded the Veteran's claim for service connection for tinnitus for additional development in April 2011. FINDING OF FACT The Veteran has tinnitus that is at least as likely as not related to military service. CONCLUSION OF LAW The Veteran has tinnitus that is the result of disease or injury incurred in active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Pond v. West, 12 Vet. App. 341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). The law allows combat veterans, in certain circumstances, to use lay evidence to establish the incurrence of a disease or injury in service. 38 U.S.C.A. § 1154(b). However, the provisions of 38 U.S.C.A. § 1154(b) do not provide a substitute for nexus evidence. They only serve to relax the evidentiary burden to establish incurrence of a disease or injury in service. Clyburn v. West, 12 Vet. App. 296 (1999). The Veteran claims that he has tinnitus as a result of acoustic trauma incurred during service. The Veteran's service separation document shows that his military occupation specialty was an Infantry Operations and Intelligence Specialist. He received the National Defense Service Medal, Combat Infantryman Badge, Vietnam Campaign medal with Device 60, and Vietnam Service Medal with Bronze Service Star. The document reflects that the Veteran served one year and one day in Vietnam. The Veteran's service treatment reports (STRs) reflect that the Veteran's hearing acuity was within normal limits for VA purposes at audiograms obtained at the Veteran's October 1965 entrance examination and at his April 1968 separation examination. The Veteran denied trouble with his ears on report of medical history forms prepared in conjunction with the entrance and separation examinations. At a December 2008 VA audiology examination, the Veteran reported moderate, bilateral, constant tonal tinnitus. The examination report indicates that the Veteran reported a history of unprotected exposure to hazardous military noise as well as civilian noise. Following a physical examination, the Veteran was assessed with tinnitus. The examiner acknowledged the Veteran's report of tinnitus since service but indicated that the record revealed no complaints of tinnitus and the Veteran had a history of civilian noise exposure which was a more likely contributor. The examiner concluded that it is less likely than not that the Veteran's tinnitus is service connected. The Veteran submitted a statement dated in April 2011 and indicated that he had reported tinnitus when examined by VA for diabetes. He reported that he was exposed to hazardous noise from grenades and weapons during service, and has had ringing in his ears since service. In a May 2011 addendum opinion, a VA audiologist indicated that the claims file had been reviewed. She noted that the Veteran's STRs were negative for any complaints of tinnitus as were post-service treatment records from VA. The audiologist noted that the Veteran had normal hearing at his separation from service, no evidence of acoustic damage from service, no complaints of tinnitus in the STRs, an extensive amount of unprotected occupational noise exposure, and a significant delay in the onset of filing a claim, it is less likely than not that tinnitus is related to active duty service. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to service connection for tinnitus. As an initial matter, the Board finds that the Veteran's exposure to acoustic trauma while on active duty is conceded based on his participation in combat as evidenced by his receipt of the Combat Infantryman Badge. The Board notes that tinnitus is "a noise in the ear, such as ringing, buzzing, roaring, or clicking." See Dorland's Illustrated Medical Dictionary 1714 (28th ed. 1994). Because of its inherently subjective nature, even a layman such as the Veteran is considered competent to report these observable manifestations. Charles v. Principi, 16 Vet. App. 370 (2002) ("ringing in the ears is capable of lay observation"). The Veteran's statements in support of his claim are construed as alleging the presence of current disability and a nexus between inservice acoustic trauma and current disability. The Board finds that he is competent to give evidence about what he experienced. For example, he is competent to discuss his current symptoms of tinnitus. Layno v. Brown, 6 Vet. App. 465 (1994). The Board notes that both the December 2008 VA audiologist and the May 2011 VA audiologist opined that it was less likely than not that the Veteran's tinnitus is related to his active duty service. While the examiners acknowledged the Veteran's report of tinnitus since service, both examiners predicated their opinions on the fact that there were no contemporaneous treatment records documenting a diagnosis of tinnitus during service or for many years thereafter. Neither audiologist addressed the credibility of the Veteran's contentions. Consequently, the only medical opinions of record do not include any probative findings. However, a current diagnosis of tinnitus is of record and the Veteran has alleged in-service acoustic trauma and a continuity of symptomatology since service. As noted, the Veteran is competent to testify to exposure to acoustic trauma in service and his symptoms of tinnitus since service. Resolving all reasonable doubt in the Veteran's favor, the competent and credible evidence creates a nexus between the Veteran's current tinnitus and active service. Therefore, service connection for tinnitus is granted. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for tinnitus is granted. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs