Citation Nr: 1325886	
Decision Date: 08/15/13    Archive Date: 08/26/13

DOCKET NO.  11-28 350	)	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

M. G. Mazzucchelli, Counsel







INTRODUCTION

The Veteran served on active duty from August 1994 to August 1998. 

This matter is before the Board of Veterans' Appeals (Board) on appeal of an October 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).  


FINDING OF FACT

Tinnitus had its onset during the Veteran's period of active service.


CONCLUSION OF LAW

The criteria for service connection for tinnitus have been met.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Notice and Assistance

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  The Board is granting in full the benefit sought on appeal.  Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed.  

Service Connection

Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  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 injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d).  

Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, 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 (1995).

The Veteran reports acoustic trauma exposure during service in the United States Marine Corps, where he served as a mortarman.  The Veteran has reported in written statements of record that during service he worked on the rifle range as a marksmanship instructor in mortars and small arms.  He reported that he has experienced tinnitus since his period of service.  The Veteran reported that while he has a postservice history of hunting, he uses a bow and arrow for hunting rather than a firearm.

The Veteran underwent a VA audiological examination in September 2009 during which he reported an onset of tinnitus in service.  The examiner diagnosed tinnitus which she found was not at least as likely as not related to military service because there were no documented complaints of tinnitus during service and the Veteran denied ear trouble at separation from service and on a June 2000 reserves examination.

The Veteran is competent to report the onset and continuity of his tinnitus symptoms, as tinnitus is a disease that is capable of lay observation.  See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (a lay person is competent to report symptoms based on personal observation when no special knowledge or training is required).  Indeed, tinnitus is diagnosed based on an individual's subjective complaints.

The Veteran's report of the onset of his tinnitus during service is deemed credible, as his report is consistent with his duties in service as a mortarman and marksmanship instructor.  The Veteran's report of experiencing tinnitus since service is deemed credible, as his report is uncontroverted by any evidence of record.  Cf. Cromer v. Nicholson, 19 Vet. App. 215 (2005).  The Board does not find the Veteran's denial of "ear trouble" in 1998 and 2000 as inconsistent with his statements that he has experienced tinnitus since service as "ear trouble" cannot necessarily be seen as equivalent to tinnitus.

As the Veteran has a current diagnosis of tinnitus and has provided a credible history of inservice onset of such, service connection for tinnitus is warranted.  See 38 C.F.R. § 3.303(b), (d).


ORDER

Service connection for tinnitus is granted.



____________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs