Citation Nr: 1329417 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 11-28 281 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran had active service from January 1958 to March 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. By that rating action, the RO denied service connection for tinnitus. The Veteran appealed this rating action to the Board. In June 2013, a hearing was held before the undersigned Veterans Law Judge. See 38 U.S.C.A. § 7107(c) (West 2002). A copy of the hearing transcript is contained in the claims file. 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 Resolving reasonable doubt in favor of the Veteran, he has tinnitus that is etiologically related to acoustic trauma sustained during active military service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, tinnitus was incurred in active military service. 38 U.S.C.A. §§ 1110, 1154(a), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has an obligation to notify claimants what information or evidence is needed in order to substantiate the claim, and a duty to assist claimants by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board finds that service connection is warranted for the Veteran's tinnitus. Therefore, no further discussion of VA's duties to notify and assist is warranted for this claim as any deficiency has been rendered moot. II. Merits Analysis The Veteran seeks service connection for tinnitus. He maintains that his current tinnitus is the same that he experienced while working as a communications technician in close proximity to guns on a destroyer for six (6) to eight (8) months in the United States Navy. (Transcript (T.) at page (pg.) 3)). He maintains that his job as a communications technician was to run messages from the radio room to the officers located on the gun mounts of the ship. (T. at pg. 7). The Veteran denies having any post-service noise exposure during his employment as a quality control inspector. (T. at pg. 5). 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 . . . or if preexisting such service, was aggravated therein." 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). To establish service connection, there generally must be (1) medical or satisfactory lay evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical or satisfactory lay evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Barr v. Nicholson, 21 Vet. App. 303 (2007). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. Feb. 21, 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.309(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). A grant of service connection under 38 C.F.R. § 3.303(b) does not require proof of the nexus element; it is presumed. Id. A claimant may rely on lay evidence "to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson 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). In each case where a veteran is seeking service connection for any disability due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by the veteran's service record, the official history of each organization in which the veteran served, such veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). The Veteran's service treatment records are silent as to any complaints of tinnitus. The Veteran's DD 214 and service personnel records show that his military occupational specialty was a communications technician. He served aboard the USS BACHE (DD 470) from January 30, to April 20, 1958. The initial post-service evidence of tinnitus was in March 2010 when the Veteran presented to a VA clinic. At that time, the Veteran reported an onset of tinnitus one year previously and that it had continued to increase in severity. When the Veteran presented to the VA ear, nose, and throat (ENT) clinic in July 2010, he denied a history of recent head trauma. However, he gave a history of having fractured his skull in a motor vehicle accident 20 years previously (1990). The examining physician noted that the Veteran's complaints of tinnitus were "new." The physician noted that a magnetic resonance imaging (MRI) scan of the head showed a punctuate T1 signal suggestive of hemorrhage in the posterior semicircular canal on the left. In support of his claim, the Veteran submitted an article published by the Institute of Medicine entitled, " Noise- Induced Hearing Loss and Tinnitus Associated with Military Service from World War II to the Present," dated in mid- October 2010. The article discussed the effects that excessive noise levels during combat and training exercises had on military personnel. In a December 2010 statement to VA, the Veteran related that the post-service motor vehicle accident had ignited his tinnitus that had its initial onset while firing guns during military service in the 1960s. (See VA Form 21-4138, Statement in Support of Claim, dated in December 2010). At the time of the Veteran's video conference hearing before the undersigned in June 2013, he testified that his then current tinnitus was the same that he had experienced while working as a communications technician in close proximity to guns on a destroyer for six (6) to eight (8) months in the United States Navy. (T. at pg. 3). He maintained that his job as a communications technician was to run messages from the radio room to the officers located on the gun mounts of the ship. (T. at pg. 7). The Veteran denies having any post-service noise exposure during his employment as a quality control inspector. (T. at pg. 5). The Veteran's statements are competent evidence as to what he experiences; i.e., his statements are considered competent to report that he has experienced ringing in his ears. Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding Veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses); see also Jandreau, 492 F.3d at 1372. Moreover, his contentions are consistent with what is known about his term of military service. 38 U.S.C.A. § 1154(a). The Veteran has credibly reported that this condition began during service and that it currently exists. While the post-service evidence indicates that he fractured his skull during a motor vehicle accident 20 years after service discharge, no examiner his unequivocally related his history of tinnitus thereto. The Board will not do otherwise. Tinnitus is a disability which laypersons are competent to identify. Charles v. Principi, 16 Vet. App. 370 (2002). It is within a layperson's personal experience. Resolving all doubt in his favor, the Board finds that all three elements of the Veteran's claim for service connection for tinnitus are proven. In so doing, the Board assigns probative weight to the Veteran's reports of when he experienced symptoms-during service, immediately after service, and in the years between his service and the present. This evidence goes to proving not only the in- service, or second element listed above, but also the nexus, or third element. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (explaining that lay evidence may be used to prove the nexus element of a service connection claim). The Board discusses the Veteran's reported symptoms in this context and does not rely on those reports for a presumption of service connection applicable only to specific chronic diseases. Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. Feb. 21, 2013) (holding that a finding of continuity of symptomatology to presume service connection for a chronic disease applies only to the diseases listed at 38 C.F.R. § 3.309(a) (2012)). That is, the Board applies 38 C.F.R. § 3.303(a) and (d) to this appeal, but not 38 C.F.R. § 3.303(b). ORDER Service connection for tinnitus is granted. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs