Citation Nr: 1327834 Decision Date: 08/30/13 Archive Date: 09/05/13 DOCKET NO. 12-19 477 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for tinnitus. ATTORNEY FOR THE BOARD M. Espinoza, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1969 to October 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a August 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. 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 In this decision, the Board grants entitlement to service connection for tinnitus, which constitutes a complete grant of the Veteran's claim. Therefore, no discussion of VA's duty to notify or assist is 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). In this case, the Veteran satisfies the existence of the present disability standard for his tinnitus claim. Here, the Veteran reported that he has experienced ringing in the ears. In August 2011, the Veteran underwent a VA audiological examination in connection with the claim and was diagnosed with tinnitus. 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 Food Service Specialist/Cook and indicates the Veteran had Vietnam service from November 1970 to October 1971. Veteran described that he was exposed to noise in service as he was assigned to an artillery unit in Vietnam. The Veteran states that he was within a few hundred feet of two 175 guns and two howitzers, that would fire at any given time. 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. Tinnitus is the type of condition that a lay person can identify. Charles v. Principi, 16 Vet. App. 370, 374 (2002). 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 generally consistent. The Veteran filed his claim for tinnitus in April 2011 and he indicated the tinnitus began during service, specifically in October 1971. In a statement received May 2011, the Veteran also stated the tinnitus began during service. During the August 2011 VA examination, the notes indicate the Veteran was unsure of the date the tinnitus onset but reported he had tinnitus ever since he can remember. It is not clear what exactly this statement may mean. It could mean the Veteran can recall experiencing the tinnitus for his entire adult life, which would be generally consistent with the tinnitus beginning during service. However, the meaning of the August 2011 VA examination notes describing the tinnitus onset is uncertain. Notably, on his notice of disagreement, received by VA October 2011, the Veteran again stated the tinnitus began during his service in Vietnam. With the exception of the August 2011 VA examination statement, which is ambiguous, 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 not as persuasive. The August 2011 VA examiner stated that the Veteran's tinnitus less likely than not caused by or a result of military noise exposure. The August 2011 examiner's rationale for his opinion is that service medical records (SMRs) are negative for complaints or treatment of tinnitus. The examiner further states that the SMRs show no evidence of aggravation to preexisting hearing loss and tinnitus was not identified as a problem area on the exit medical examination. Finally, the VA examiner states that Veteran did not "time lock" the onset of tinnitus to military service. However, the Veteran has consistently stated that the tinnitus began during service. The August 2011 examiner's opinion does not account for the Veteran's consistent statements, prior to the August 2011 examination, which he states the tinnitus began during service. Additionally, the August 2011 VA examiner dismisses the Veteran's exposure to loud noise, as he notes under the etiology for hearing loss, that the Veteran's military occupational specialty of cook, is not typically associated with prolonged exposure to high risk noise; however, as described above, the Board has found that the Veteran was subjected to artillery fire during 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). Therefore, the Veteran's credible statements as to the onset of his tinnitus are sufficient to outweigh the opinion of the examiner in the August 2011 VA examination and establish a nexus between the Veteran's tinnitus and noise exposure during service. A Veteran's lay statements may be sufficient evidence in any claim for service connection. 38 C.F.R. § 3.303(a) ("Each disabling condition shown by a Veteran's service records, or for which he seeks a service connection [,] must be considered on the basis of . . . all pertinent medical and lay evidence"; see 38 U.S.C.A. § 1154(a) (requiring VA to include in its service connection regulations that due consideration be given to "all pertinent medical and lay evidence"). 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. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs