Citation Nr: 1327202	
Decision Date: 08/26/13    Archive Date: 08/29/13

DOCKET NO.  11-10 912	)	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. Espinoza, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1968 to September 1972.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated June 2010 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 May 2010, the Veteran underwent a VA audiological examination in connection with the claim and while the examiner does not explicitly diagnosis the Veteran with tinnitus she opined 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 an Aviation Structural Mechanic and the Veteran described that he was exposed to noise in service through flight line noise, sheet metal work, hydraulics, generators and small weapons fire.  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.

The Veteran has consistently 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.  In this regard, the Board notes that tinnitus is subject to service connection based upon continuity of symptomatology as an "organic disease of the nervous system" under 38 C.F.R. § 3.309(a).  See Walker v. Shinseki,708 F.3d 1331 (Fed. Cir. 2013).  The Veteran filed his claim for tinnitus in January 2010 and he indicated the tinnitus began during service.  During the May 2010 VA examination, the Veteran stated that the tinnitus onset after jet engine noise exposure in Okinawa.  On the Veteran's VA Form 9, he also stated that the tinnitus began during service in Okinawa.  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 May 2010 VA examiner stated that the Veteran's tinnitus is not caused by or a result of service.  The May 2010 examiner's rationale for her opinion is that hearing sensitivity was within normal limits at the time of discharge and there was no documentation of tinnitus in the service treatment records.  The examiner opined that the tinnitus is more likely due to high frequency hearing loss incurred after his military service.  However, the Veteran has consistently stated that the tinnitus began during service.  The May 2010 examiner's opinion does not account for the Veteran's reported symptoms of tinnitus since service.  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).  Additionally, the Veteran stated, on the VA Form 9, that he did not mention the tinnitus at his separation examination because he believed that if he mentioned any symptoms, he would have to remain longer for testing.  He states that he was ready to return home, thus he did not mention his tinnitus symptoms.  Therefore, the Veteran's credible statements as to the onset of his tinnitus and his explanation as to why he did not report any symptoms of tinnitus during service are sufficient to outweigh the opinion of the examiner in the May 2010 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