Citation Nr: 1328163 Decision Date: 09/04/13 Archive Date: 09/10/13 DOCKET NO. 11-20 653 ) 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: Disabled American Veterans ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from April 1951 to April 1955. This appeal comes to the Board of Veterans' Appeals (Board) from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The evidence establishes that the Veteran's tinnitus began during and has continued since his military service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. The Veteran is currently seeking service connection for tinnitus. He served on active military duty from April 1951 through April 1955 in the United States Air Force. During service, the Veteran's MOS was aircraft mechanic. He is currently diagnosed with tinnitus. The Board acknowledges that as an aircraft mechanic the Veteran was exposed to loud noise in service, such as the noise from jet engines. His statements on this matter are found to be credible. Furthermore his MOS is listed as highly probable for exposure to hazardous noise on the Duty MOS Noise Exposure Listing. See Fast Letter 10-35 (Sept 2010). Therefore it is clear from the record that the Veteran had military noise exposure. See 38 U.S.C. § 1154(a). However, neither exposure to noise in the military, nor a currently diagnosed disability, alone is grounds for service connection in all cases. Rather, the military noise exposure must cause the tinnitus. The Board will first consider whether service connection is warranted based on incurrence during service. Service treatment records were reviewed, but fail to describe any complaints of ringing in his ears while the Veteran was in service. A record from November 1953 indicates hard matter was plugging the Veteran's right ear, but no complaints of ringing were noted. Additionally the Veteran's ears were noted to be in normal condition on his separation examination. As such, the record does not reveal that the Veteran received any medical treatment for ringing or buzzing in his ears during service. However, lack of medical treatment in service alone does not determine whether service connection is warranted. The Veteran may also establish the presence of symptomatology by his own lay testimony. The Court of Appeals for Veterans Claims (Court) has held that lay evidence is competent and sufficient to establish a diagnosis of a condition when 1) a lay person is competent to identify the medical condition; 2) the lay person is reporting a contemporaneous medical diagnosis; or 3) 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). Of note, the Court has specifically held that tinnitus is a type of disorder associated with symptoms capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). In this case, the record includes the Veteran's description of frequent ringing in his ears. In a December 2008 VA treatment record the Veteran complained of 'noise' in both ears for "probably years." In an April 2010 written statement the Veteran asserted he "always had ringing in my ears since I was discharged." He explained at first he did not know what the white noise was. In his August 2010 written notice of disagreement the Veteran stated he had ringing in his ears since he was discharged. The Veteran stated he did not report the ringing because "it was not something that I noticed or was ever aware that I had." The Veteran reported the ringing became louder and he was informed of his diagnosis. However, the Veteran asserted no treatment was available in the 1950's and 60's so he learned to live with it. In his July 2011 written substantive appeal the Veteran asserted the ringing in his ears started from his noise exposure in the armed forces and continued to today. Therefore throughout the evidence of record the Veteran has consistently related his current tinnitus to his exposure to acoustic trauma while in service. The Veteran has consistently explained that he began to have symptoms of ringing in his ears since discharge; however his condition was not diagnosed as tinnitus until later. The Board finds the record does not contain any suggestion of an alternative, conflicting date of onset of symptoms. As the Veteran's testimony has been consistent, the Board finds no reason to doubt the veracity or credibility of his testimony. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Therefore, the Board finds that the Veteran's statements are credible to establish that his symptoms of tinnitus began while he was still in active duty military service and have continued to the present day. The Board acknowledges that the Veteran's tinnitus was evaluated by a VA examiner in July 2010 and again by the same examiner in May 2011. On both occasions the examiner opined the Veteran's tinnitus was less likely than not due to his military service. The examiner explained there were no complaints of tinnitus during military service and the Veteran stated he first noticed his tinnitus during a hearing test at his post-service employer. However, the Board finds the examiner's understanding of the Veteran's lay testimony is not in agreement with the Board's understanding of the Veteran's consistent lay assertions throughout the claims file. The Veteran has consistently asserted that he experienced the symptoms of ringing and noise in his ears since service; however he was not diagnosed with tinnitus until years later, possibly at the post-service employer hearing test referenced by the VA examiner. However, the examiner's opinion appears to be based on a different understanding that the Veteran's condition did not begin until during his post-service employment. Although the opinion of the VA examiner found the Veteran's current tinnitus was not connected to his military service, the Board finds the Veteran's consistent lay testimony has related his current disability to his military service. As such, the Board concludes that the evidence for and against the Veteran's claim for service connection is at the very least in relative equipoise, and reasonable doubt will therefore be resolved in the Veteran's favor. See 38 C.F.R. § 3.102. Accordingly, service connection for tinnitus is granted. Duties to Notify and Assist The Veteran's claim for service connection is granted. This is a full grant of all benefits sought on appeal. In light of this result, a detailed discussion of VA's various duties to notify and assist is unnecessary (because any potential failure of VA in fulfilling these duties is harmless error). [Continued on Next Page] ORDER Service connection for tinnitus is granted. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs