Citation Nr: 1324781 Decision Date: 08/05/13 Archive Date: 08/13/13 DOCKET NO. 10-07 077 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel INTRODUCTION The Veteran had many years of service in the Navy Reserves and active duty service from August 2004 to May 2005, and from October 2007 to November 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA), regional office (RO) in Denver, Colorado that denied service connection for tinnitus. In January 2013 the Veteran provided testimony at a videoconference hearing before the undersigned; a transcript of that hearing is of record. FINDING OF FACT The Veteran's current tinnitus commenced during active duty service. CONCLUSION OF LAW Tinnitus was incurred in active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board grants service connection for tinnitus. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). The Veteran contends that he has tinnitus that commenced during active military service as a result of exposure to noise. He reports that during that active duty service, he took part in construction work involving extensive drilling, use of heavy equipment, and power saws. The Board observes that the Veteran filed a claim for tinnitus in 2008, immediately following his period of active duty in 2007/2008. A VA examination was conducted in January 2009, and the examiner provided an addendum opinion dated in June 2009. The examiner noted that the Veteran had reported a history of inservice noise exposure from weapons, heavy equipment, generators, and aircraft. The examiner stated that as the Veteran had denied ringing in his ears on post-deployment health assessment forms in April 2005 and August 2008, that she could not make a determination of the onset of tinnitus without resort to mere speculation. As the examiner did not provide an opinion regarding the etiology of the Veteran's tinnitus, this opinion neither weighs in favor of or against the Veteran's claim. Nevertheless, the Board finds that the Veteran is both competent and credible to report experiencing tinnitus after exposure to loud noises from construction equipment during his active military service. See Layno v. Brown, 6 Vet. App. 465 (1994) (holding that a claimant is competent to report observable symptoms that require only personal knowledge, not medical expertise, as they come to the claimant through his senses); see also Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that a claimant is competent to provide lay evidence regarding those matters which are within his personal knowledge and experience). Additionally, the Board notes that although the Veteran denied "ringing in the ears" when completing paperwork at the end of his active duty tour, he also filed his claim for service connection for tinnitus little more than one month after his separation from his final period of active duty. Therefore, with respect to determining whether the Veteran's actions support his current contention that he experienced tinnitus during his period of active duty service, the Board finds the evidence of record is at least in equipoise. Accordingly, after resolving any benefit of the doubt in favor of the Veteran, the Board finds that the Veteran's tinnitus commenced during active military service following acoustic trauma. Under such circumstances, and granting the Veteran the benefit of any doubt in this matter, the Board finds that service connection is warranted for tinnitus. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. ORDER Service connection for tinnitus is granted. ____________________________________________ M. N. HYLAND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs