Citation Nr: 1327581 Decision Date: 08/28/13 Archive Date: 09/05/13 DOCKET NO. 13-13 977 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Kentucky Department of Veterans Affairs ATTORNEY FOR THE BOARD S. Nathanson, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1968 to April 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated December 2012 and issued January 2013 of the Louisville, Kentucky Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDING OF FACT The evidence is in relative equipoise as to whether the Veteran's current tinnitus is related to service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1101, 1110, 1111, 1137, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In light of the fully favorable determination in this case, no discussion of compliance with VA's duty to notify and assist is necessary. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). To establish entitlement to service connected compensation benefits, a 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-the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran asserts that he currently has tinnitus in his left ear as a result of noise exposure during service. The evidence of record, including an August 2012 claim, May 2013 VA Form 9, and November 2012 VA examination report, reflects the Veteran contends he currently has ringing in his left ear. As the symptoms of tinnitus are capable of lay observation, the current disability requirement has been met. See Charles v. Principi, 16 Vet. App. 370 (2002) (lay persons competent to testify about ringing in ears in service). What remains to be established is whether the Veteran suffered an in-service injury and whether his current disability is related to such in-service injury. The Veteran's DD 214 reflects he had a military occupational specialty of special purpose material supply specialist. He reported upon VA examination in September 2012 that he worked in a depot area where trucks brought in supplies and they unloaded the supplies and put them away. The Veteran further reported, at the examination, that his main noise exposure occurred during basic training from loud gun fire on the firing range. Although a review of the Veteran's service treatment records show no in-service complaints or notations of tinnitus, the Veteran had pre-existing hearing loss and reported "ear, nose or throat trouble" upon enlistment and separation. The Board also notes the Veteran is currently service connected for bilateral hearing loss as his pre-existing right ear hearing loss was aggravated by service. Given this factual background, exposure to noise is found to be consistent with the circumstances of his service. Accordingly, in-service noise exposure is conceded. The Veteran was afforded a VA audiology examination in September 2012 to determine the etiology of his tinnitus, among other disabilities. As the Veteran's service treatment records were not associated with the file, an addendum opinion was provided in November 2012, after the records were associated with the claims file. During the September 2012 examination, the Veteran reported that he did not recall when the tinnitus started. He indicated, however, that the gun fire in basic training "really bothered" his ears while in service. He also noted post-service noise exposure from working at a coal mine for 25 years. In the November 2012 examination report, the examiner opined that the exact etiology of the Veteran's tinnitus could not be determined without resorting to mere speculation based on available information. The examiner explained, "with no general onset of tinnitus reported, there is simply no way to determine if this could have been the result of his service time or a result of his 25 years occupational exposure with coal mining." The Board finds the opinion of minimal probative value as it provides neither a positive nor negative nexus opinion. See Fagan v. Shinseki, 573 F.3d 1282, 1289 (Fed.Cir.2009) ("The examiner's statement, which recites the inability to come to an opinion, provides neither positive nor negative support for service connection"). The Veteran reported in his August 2012 claim and May 2013 VA Form 9 that he had left ear tinnitus starting in basic training from noise exposure to gun fire. In addition to being competent to provide lay evidence regarding his current tinnitus, the Veteran is also competent to provide lay evidence concerning the onset and continuity of these symptoms, regardless of the lack of contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The question then becomes whether such lay evidence is credible. As the lay statements are all generally consistent, even in light of the Veteran's contention that he did not recall the onset of his tinnitus at the September 2012 VA examination, and do not contradict the evidence of record, the Board finds the statements both credible and more probative than the November 2012 VA examination opinion. As the weight of the evidence reflects that the Veteran experienced tinnitus in service, he has been diagnosed as having current tinnitus, and there is a relationship between his tinnitus and his service, the criteria for service connection for tinnitus have been met. 38 U.S.C.A. § 1110, 5107(b); 38 C.F.R. § 3.303. ORDER Service connection for tinnitus is granted. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs