Citation Nr: 1325435 Decision Date: 08/12/13 Archive Date: 08/16/13 DOCKET NO. 12-29 224 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Espinoza, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1970 to September 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated July 2011 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. FINDING OF FACT The Veteran's tinnitus is as likely as not attributable to his active military service. CONCLUSION OF LAW The criteria for service connection for tinnitus are met. 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 As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2012). In this decision, the Board grants service connection for tinnitus. This represents a complete grant of the benefit sought on appeal for this issue. Thus, any deficiency in VA's compliance with this issue is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). To establish service connection for a present disability, the Veteran 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, 1167 (Fed. Cir. 2004). In service connection claims consideration must be given to all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002); 38 C.F.R. § 3.303(a). The Veteran satisfies the existence of the present disability standard for his tinnitus claim. The Veteran reported that he has experienced ringing in the ears. In June 2011, the Veteran underwent a VA audiological examination in connection with the claim and while the examiner does not explicitly diagnosis the Veteran with tinnitus he does opine the etiology of the Veteran's tinnitus. Moreover, the Veteran has consistently asserted that he suffers from tinnitus. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds that the Veteran's statements in this case are credible since tinnitus is subjective, and the kind of condition to which lay testimony is competent. Charles v. Principi, 16 Vet. App. 370, 374 (2002). The evidence of record supports a finding that the Veteran sustained exposure to loud noises while in service. Specifically, the Veteran's Form DD-214 lists his military occupation as a radio operator and the Veteran describes that he utilized high frequency headsets and generator powered equipment, as well as participated in weapons qualifications. As the Veteran's service records are supportive of his competent and credible contentions regarding exposure to loud noises, the element of the incurrence of an in-service injury is met for tinnitus. In a December 2010 statement, the Veteran reported that tinnitus first began during service. As noted above, tinnitus is the type of condition that a lay person can identify. Id. The Veteran reports ringing in his ears, a typical symptom of tinnitus, and a symptom which is capable of being observed and described by a layperson. The Veteran is credible with respect to his assertions of experiencing tinnitus in service and continuously since service because his statements regarding the onset of the tinnitus are consistent. The Veteran filed his claim for tinnitus in December 2010 and he indicated the tinnitus began during service. During the June 2011 VA examination the Veteran stated that the onset of tinnitus was in 1970 during rifle range weapons firing. These are consistent statements that show the Veteran maintains the tinnitus began during service. The Board finds the Veteran's statements as to the onset of his tinnitus to be credible and his statements are accorded significant evidentiary weight. Moreover, the VA examiner's explanation as to why the Veteran's tinnitus is not service connected is flawed. The December 2011 VA examiner stated that the Veteran's tinnitus is not caused by or a result of service. The December 2011 examiner's rationale for his opinion is that the Veteran reported hearing loss sometime in 2006 or 2007 but did not seek immediate treatment. The examiner opined that sudden hearing loss in the absence of other symptoms is typically caused by viral or circulatory etiology. The examiner stated that delayed treatment, as occurred here, makes recovery less likely and that tinnitus in the affected ear is common. However, the Veteran did not report tinnitus began in 2006 or 2007 but consistently stated that the onset of tinnitus was during service. The December 2011 examiner's opinion does not account for the Veteran's reported symptoms of tinnitus since 1970. Thus, the medical opinion is of little evidentiary value because the probative value of a medical opinion comes from the factually accurate, fully articulated, and sound reasoning for the conclusion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Therefore, the Veteran's credible statements as to the onset of his tinnitus are sufficient to outweigh the opinion of the examiner in the December 2011 VA examination. The Board finds that the Veteran is both competent and credible to report tinnitus during service and since service. At the least, this evidence raises reasonable doubt as to whether the Veteran's tinnitus is etiologically related to noise exposure in service. When resolving the benefit of the doubt in the Veteran's favor, the Board finds that tinnitus is in fact related to service. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). Thus, the Board concludes that service connection for tinnitus is warranted. ORDER Entitlement to service connection for tinnitus is granted. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs