Citation Nr: 1324894 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 10-05 986 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The Veteran had active duty service from September 1976 to September 1980. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified at a Travel Board hearing in October 2012; a transcript of that hearing has been associated with the claims file. FINDING OF FACT The Veteran's tinnitus is causally related to his active duty service. CONCLUSION OF LAW Tinnitus was incurred in active duty service. 38 U.S.C.A. § 1131 (West 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The issue before the Board involves a claim of entitlement to service connection. Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran has a current diagnosis of tinnitus. He asserts that when he learned that the sound in his ears was tinnitus he realized that it started with noise exposure in service with firearm training (he had no ear protection), and continued with noise exposure while assigned to a construction tender (CGC Smilax) and a buoy tender (CGC White Sumac) in service. Specifically, he asserts that during his service in the United States Coast Guard he was exposed to weapons fire qualifications as well as noisy equipment on his assigned construction barge and buoy tender without ear protection. He stated that he qualified on the .45 caliber pistol and the M-16 rifle, and was exposed to equipment on the vessels to include a diesel pile driver, diesel compressor, diesel crane, pneumatic deck winches, gasoline chain saw, deck scalers, chipping hammers, two-person pneumatic drill, gasoline portable pump and the ambient noise of the diesel engine on the ships without any hearing protection. After discharge from service, he served on a naval ship, as a civilian, but was provided with earplugs and muffs and he had continuous monitoring of noise levels so that he was protected from excessive noise. The Veteran's private physician has opined that the Veteran's tinnitus is more likely than not related to the acoustic trauma that he experienced while serving in the United States Coast Guard. His rationale for this opinion was that the Veteran was exposed to intense noise for a long duration in service and it has been proven that impulse noise exposure as well as long-term noise exposure causes tinnitus. The RO denied the claim in major reliance on a September 2006 VA outpatient clinic note wherein the Veteran denied any symptoms of tinnitus. Furthermore, VA examiner in December 2009 concluded that tinnitus was not caused by or a result of military noise exposure. The examiner's rationale was that the record does not document tinnitus during the Veteran's military service and that the 2006 VA record was negative for tinnitus. He noted that the Veteran's last military noise exposure was 29 years ago and the record and history did not support the claim of tinnitus as a result of military noise exposure. The Board acknowledges that there is conflicting medical evidence on the point of a nexus to service; the opinion by the Veteran's private provider is in support of the Veteran's claim, and the VA opinion is against the claim. However, in this particular case the Board notes that there was some increase in puretone thresholds during service from an audiogram conducted in 1979 and the time of discharge, especially in the left ear at the higher frequencies. In this regard, on a 1979 audiogram the Veteran had readings of 15 decibels at the 4000 Hertz level and 10 decibels at the 6000 Hertz level in the left ear, whereas readings of 25 and 20 decibels were reported in the left ear at that same level on discharge examination in April 1980. This, when considered with the Veteran's duties and noise exposure in service on the construction and buoy tenders, does suggest possible noise trauma during service. The Board also acknowledges that the Veteran, as a layperson, is nevertheless competent to report symptoms which he was experiencing. Although he did not report any tinnitus complaints during service or on discharge examination in April 1980, the records show that the report of discharge examination questionnaire did not expressly ask about tinnitus or ringing in the ears. In fact, the Veteran testified that he could not identify the sounds from his ears during service as tinnitus; he thought they were "part of the body function." Thus, the Board is left with the Veteran's statements; and, upon reviewing the record, the Board is unable to find a persuasive reason to doubt the Veteran's credibility regarding tinnitus beginning during service. Under the circumstances of this case, resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for tinnitus is warranted. In closing, there is no need to undertake any review of compliance with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations in this case since there is no detriment to the Veteran as a result of any VCAA deficiency in view of the fact that the full benefit sought by the Veteran is being granted by this decision of the Board. See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a). By letter dated in October 2008, the Veteran was furnished notice of the manner of assigning a disability evaluation and an effective date. He will have the opportunity to initiate an appeal from these "downstream" issues if he disagrees with the determination which will be made by the RO in giving effect to the Board's grant of service connection. ORDER Entitlement to service connection for tinnitus is warranted. The appeal is granted. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs