Citation Nr: 1329998 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 10-21 269 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran had active service from February 1994 to April 1996. He served in the Army National Guard from May 1992 to February 1994 with a verified period of active duty for training (ACDUTRA) from June 28, 1993 to August 13, 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified at a March 2011 Travel Board hearing. A transcript of the hearing is in the claims file. During his hearing and in a March 2011 statement, the Veteran withdrew his claim for entitlement to service connection for an acquired psychiatric disorder. Accordingly, this issue is no longer in appellate status. 38 C.F.R. § 20.204. Also at the hearing, the Veteran submitted additional medical evidence along with a written waiver of RO consideration of the evidence. See 38 C.F.R. §§ 19.37, 20.1304. FINDING OF FACT Resolving all doubt in the Veteran's favor, tinnitus had its onset in service. CONCLUSION OF LAW Tinnitus was incurred in active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In the decision below, the Board has granted the Veteran's claim for service connection for tinnitus, and therefore the benefit sought on appeal has been granted in full. Accordingly, regardless of whether the requirements of the VCAA have been met in this case, no harm or prejudice to the appellant has resulted. See Conway v. Principi, 353 F.3d 1369, 1375 (Fed. Cir. 2004); Pelegrini v. Principi, 18 Vet. App. 112, 121-22 (2004); Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. LAW AND ANALYSIS Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. The Veteran provides a history of noise exposure while serving with an infantry unit during his period of active service. Significantly, through RO hearing testimony in October 2008 and Board testimony in March 2011, the Veteran contends that he has experienced tinnitus since service. The Veteran is competent to describe his in-service experiences, and the Board finds no reason to doubt the Veteran's credibility, especially in light of the fact that his DD-214 confirms his service with an infantry unit. Moreover, June 2008 VA treatment records document the Veteran's complaints of tinnitus "since in the military" as well as reports of having tinnitus for the "past 12 years." However, the Board also observes that the record contains negative nexus opinions from a January 2009 examiner and an April 2010 VA examiner. Both examiners provided opinions that it is not as likely as not that the Veteran's tinnitus occurred during or as a result of military service. The January 2009 VA examiner did not provide a clear rationale for the conclusion but noted that hearing thresholds from military exams did not represent a permanent threshold shift because thresholds were within normal limits on the current hearing evaluation. The April 2010 examiner noted that there was no significant change in hearing that had occurred since the Veteran's hearing was evaluated in 1992 for a National Guard physical. The examiner also noted that there was no report of tinnitus in the service treatment records. The examiner also found it significant that the Veteran stated that his tinnitus had an onset "5 to 6 years ago, though he separated from the service 14 years ago." Based on a review of the foregoing and with application of reasonable doubt, the Board finds that service connection is warranted for tinnitus. Just as the Veteran is competent to report having exposure to acoustic trauma in service, he is also competent to report experiencing ringing in his ears since this exposure that has continued to the present day. See Barr v. Nicholson, 21 Vet. App. 303 (2007). For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). The Board additionally finds no reason to call the Veteran's credibility into question with respect to his reports of in-service onset of tinnitus symptomatology, and of ongoing ringing in his ears from that time to the present day. As discussed above, the Board has already found that the circumstances of the Veteran's duties with an infantry unit would likely have exposed him to acoustic trauma during his period of active duty service. Although the January 2009 VA examiner opined against a relationship between the Veteran's in-service noise exposure and his current tinnitus disability, that examiner did so without providing an adequate explanation as to why this was the case. Moreover, the April 2010 examiner found it significant that the Veteran reported an onset of tinnitus only 5 or 6 years ago, however, the examiner failed to address pertinent VA outpatient treatment records which document the Veteran's report of ongoing tinnitus for 12 years. Considering the foregoing deficiencies, the Board finds both negative opinions with respect to the Veteran's tinnitus etiology to be inadequate for rating purposes. In light of the foregoing, the Board finds that the balance of positive and negative evidence is at the very least in relative equipoise with respect to whether tinnitus was incurred in service. Resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for tinnitus is warranted. 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for tinnitus is granted. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs