Citation Nr: 1320933	
Decision Date: 06/28/13    Archive Date: 07/05/13

DOCKET NO.  10-43 779	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington


THE ISSUE

Entitlement to service connection for tinnitus.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

J. Young, Associate Counsel



INTRODUCTION

The Veteran served on active duty in May 1968 to March 1970, during the Vietnam Era. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) in Seattle, Washington.


FINDING OF FACT

Affording the Veteran all reasonable doubt, tinnitus is causally related to noise exposure during active service.


CONCLUSION OF LAW

The criteria for service connection for tinnitus have been met.  38 U.S.C.A. § 111  (West 2002); 38 C.F.R. § 3.303 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Notice and Assistance

VA has 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 and 3.326(a).  See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  In this case, the Board is granting in full the claim of service connection for tinnitus.  Further discussion of the duties to notify and assist is not necessary.  

II.  Legal Criteria

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); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table).  

Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); see Charles v. Principi, 16 Vet. App. 370 (2002); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  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.

III.  Factual Background

The Veteran's DD 214 indicates that he is a combat veteran, as evidenced by the Veteran being awarded the Combat Action Ribbon.  He contends that his tinnitus is due to combat service in Vietnam.  See, e.g., November 2009 Claim; see also April 2013 Representative's Statement.

The Veteran's November 1967 induction examination notes that the Veteran reported a history of ear, nose or throat trouble; the Veteran specifically reported that he had an ear infection in 1964.  The Veteran reported that he did experience draining in his ear; however, no hearing loss was reported by the Veteran.  The examiner noted that upon examination, the Veteran's ears, including audio acuity, tested "normal."  The Veteran also reported working at a paper mill prior to enlisting in the Marine Corps.  See Veteran's STRs.

In the Veteran's March 1970 separation examination, the examiner reported that the Veteran's ears were "normal," including audio acuity.  See Veteran's STRs.

The Veteran's STRs do not indicate any in-service complaints or treatments for hearing loss or tinnitus.  See Veteran's STRs.

In March 2010, the Veteran was afforded a VA audiological examination.  During the examination, the Veteran reported in-service exposure to acoustic trauma; the Veteran performed perimeter and office work during military service in Vietnam.  The Veteran reported that he did not use hearing protection during his military service.

The Veteran also reported that his post-service employment consisted of working at a paper mill and operating tug boats for the mill for 30 years.  The Veteran also stated that he was exposed to excessive noise while working at the paper mill; however, he reported that he wore hearing protection while working at the paper mill.  

The Veteran denied any other noise exposure; he also denied any "middle ear pathology, or a family history of hearing loss or head/ear trauma."  

When the VA examiner asked the Veteran to indicate the approximate onset of his tinnitus disability, the Veteran responded by saying that his tinnitus has been "longstanding."  The Veteran also reported that his tinnitus is constant.

Results from all diagnostic and clinical tests conducted during the examination concluded that "Puretone air and bone conduction thresholds revealed hearing within normal limits through 3 Hz with a mild to severe sensorineural hearing loss in the higher frequencies, with good word recognition bilaterally.  Speech reception threshold[s] are in agreement with Pure[t]one averages.  Tympanometry was within normal limits, bilaterally."  See March 2010 VA Examination.

The Veteran was diagnosed with bilateral sensorineural hearing loss and the VA examiner described tinnitus as a likely symptom.  See March 2010 VA Examination.

In a July 2010 VA medical opinion, provided by the March 2010 VA examiner, the examiner opined that the Veteran's tinnitus disability is "less likely as not (less than 50/50 probability) caused by or a result of military service.  The examiner listed the evidence of "no in service complaints of hearing loss or tinnitus," "no documented hearing loss in service," and the Veteran's statements regarding 30 years of civilian work in a paper mill as the pertinent evidence considered in rendering her opinion.  The examiner provided that her "clinical experience, evidence reviewed in records and evidence provided by the [V]eteran" as the rationale for her opinion.  See July 2010 VA Medical Opinion.

In the Veteran's September 2010 notice of disagreement, the Veteran described in-service noise exposure specifically related to "weapons, mort[a]rs, and explosions."  See September 2010 Notice of Disagreement.

In April 2013, the Veteran's representative submitted a statement on behalf of the Veteran; the representative's statement reasserts the Veteran's contentions that his tinnitus disability is a result of the Veteran's combat service and that the Veteran wore hearing protection during his 30 years of civilian employment at a paper mill.  See April 2013 Representative Statement.

IV.  Analysis

After reviewing the evidence of record, the Board concludes that service connection for a tinnitus is warranted; the evidence supports a finding that the Veteran's tinnitus disability began in-service.  

The Veteran has reported that the onset of his tinnitus began in service and in-service acoustic trauma is conceded.  The Veteran is competent to report experiencing tinnitus that began in service.  Tinnitus is "subjective," as its existence is generally determined by whether or not the Veteran claims to experience it.  For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone.  See Charles, 16 Vet. App. 370 (2002).  If a veteran reports ringing in his or her ears, then a diagnosis of tinnitus is generally applied without further examination.  In addition, since the diagnosis of tinnitus is so heavily reliant upon lay statements, the etiology of the disorder is similarly reliant upon them.  The date that a veteran reports that the tinnitus symptoms began is generally accepted as the date that the disorder began, without further examination.  Accordingly, while service connection for tinnitus requires a medical diagnosis of tinnitus and a medical nexus relating the diagnosis to military service, lay testimony plays an unusually important role in these determinations. 

The medical evidence includes a diagnosis of tinnitus, but a VA examiner provided a negative medical opinion.  The Board finds the Veteran to be competent and credible.  Throughout this appeal, he has been consistent in his reports that his tinnitus began in service and has continued since that time.  He reported that tinnitus began in 1969 during service in his November 2009 claim and reported to the March 2010 examiner that his tinnitus has been "longstanding."  Furthermore, the Veteran has reported wearing hearing protection post-service.  After reviewing all of the evidence, the Board finds the Veteran's assertions that the onset of his tinnitus was in service are both competent and credible.

Therefore, in considering the Veteran's competent and credible contentions, the presence of a current tinnitus disability, as well as the pertinent medical evidence of record, and in affording the Veteran the benefit-of-the-doubt, the Board finds that it is at least as likely as not that the Veteran has tinnitus that was incurred in service.  The evidence is in favor of the grant of service connection for tinnitus.  Service connection for tinnitus is granted.  38 U.S.C.A §5107.  

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ORDER

Entitlement to service connection for a tinnitus disability is granted.



____________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs