Citation Nr: 1328325	
Decision Date: 09/05/13    Archive Date: 09/16/13

DOCKET NO.  12-06 739	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in St. Louis, Missouri



THE ISSUE

Entitlement to service connection for tinnitus.  



REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of 
the United States



ATTORNEY FOR THE BOARD

S. Nathanson, Associate Counsel 




INTRODUCTION

The Veteran served on active duty from July 2003 to July 
2007.  

This case comes before the Board of Veterans' Appeals 
(Board) on appeal from a June 2010 rating decision by the RO 
that, among other things, denied service connection for 
tinnitus and granted service connection for status post left 
ankle/distal tibia fracture, open reduction and internal 
fixation.  The Veteran filed a timely Notice of 
Disagreement, but only perfected an appeal as to the claimed 
tinnitus.  As such, service connection for tinnitus is the 
only issue before the Board for consideration.  

In addition to the paper claims file, there is a Virtual VA 
electronic claims file associated with the claim.  A review 
of the documents in the electronic file shows 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 currently demonstrated tinnitus is shown as likely as 
not to be due to the Veteran's exposure to hazardous noise 
levels during his period of active service.  



CONCLUSION OF LAW

By extending the benefit of the doubt to the Veteran, his 
disability manifested by tinnitus is due to disease or 
injury that was incurred in his active service.  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

The Veterans Claims Assistance Act of 2000 (VCAA) describes 
VA's duty to notify and assist claimants in substantiating a 
claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 
5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 
3.102, 3.156(a), 3.159, 3.326(a) (2012).

To the extent that the action taken herein below is 
favorable to the Veteran, further discussion of VCAA is not 
required at this time.


Legal Principles and Analysis 

Service connection may be granted for disability resulting 
from disease or injury incurred in or aggravated by active 
service.  38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 
3.303(a) (2012).  

To establish a right to compensation for a present 
disability, 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. 2009) (quoting Shedden v. Principi, 381 F.3d 
1163, 1167 (Fed. Cir. 2004)).  The absence of any one 
element will result in denial of service connection.  Coburn 
v. Nicholson, 19 Vet. App. 427, 431 (2006).

Service connection may be granted for any disease initially 
diagnosed after discharge 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).

Except as otherwise provided by law, a claimant has the 
responsibility to present and support a claim for benefits.  
VA shall consider all information and lay and medical 
evidence of record in a case and when there is an 
approximate balance of positive and negative evidence 
regarding any issue material to the determination of a 
matter, VA shall give the benefit of the doubt to the 
claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. 
Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on 
its merits, the weight of the evidence must be against the 
claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

The Veteran contends that his current tinnitus is 
attributable to excessive and harmful noise exposure during 
his period of active service.  

The evidence of record, including a December 2009 claim, a 
January 2010 written statement by the Veteran, and a May 
2010 VA examination report, reflects the Veteran's 
statements that he currently is experiencing ringing in his 
ears.  

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).  

A review of the Veteran's service personnel records shows 
that his military occupation specialties include engineer 
equipment mechanic.  

At the VA examination in May 2010, he reported experiencing 
excessive noise as a heavy equipment mechanic in service.  
Given this factual background, exposure to noise is found to 
be consistent with the circumstances of his service.  As 
such, in-service noise exposure is acknowledged.  38 
U.S.C.A. § 1154(a).

What remains to be established is whether the Veteran's 
current disability is related to his in-service noise 
exposure.  The Veteran was afforded a VA audiology 
examination in May 2010 to determine the etiology of the 
claimed tinnitus.  

At the time of the examination, the Veteran was noted to 
have reported having intermittent, bilateral tinnitus that 
had its onset in service around 2006.  He further reported 
having excessive noise exposure as a heavy equipment 
mechanic, as well as civilian noise exposure thereafter, to 
include working at a fencing fabrication shop from 2009 to 
the present.  All of these activities were reported as done 
with the use of hearing protection.  

The examiner opined that the Veteran's tinnitus was not due 
to or the result of military noise exposure.  In so finding, 
the examiner noted that the Veteran had normal hearing with 
no complaints of hearing loss or tinnitus at enlistment, 
throughout service, or at separation and that the Veteran 
did not currently have a hearing loss disability for VA 
purposes.  See 38 C.F.R. § 3.385 (2012).  

Based on a careful review of the entire record, the Board 
finds the evidence to be in relative equipoise in showing 
that the currently demonstrated tinnitus as likely as had 
its clinical onset during his period of active service.  

The Veteran reported in his December 2009 claim, a January 
2010 written statement, and the March 2012 VA Form 9 that he 
had bilateral tinnitus that had its onset in service.  

The Veteran is competent to report as to the symptoms he 
experiences, such as tinnitus.  See Charles v. Principi, 16 
Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 
465 (1994); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. 
Cir. 2006).  

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, 451 F.3d at 
1337.  

The question then becomes whether such lay evidence is 
credible.  As the lay statements are consistent in nature, 
the Board finds the assertions to be credible and highly 
probative. 

While the opinion of the May 2010 VA examiner is against the 
claim, the Board finds this opinion to be of limited 
probative value to the extent that the examiner did not 
fully assess the Veteran's credible assertions of having the 
onset of tinnitus in service.  

In resolving all reasonable doubt in the Veteran's favor, 
service connection is warranted.  Gilbert, 1 Vet. App. at 
53.


ORDER

Service connection for tinnitus is granted.  



____________________________________________
STEPHEN L. WILKINS
Veterans Law Judge, 
Board of Veterans' Appeals




 Department of Veterans Affairs