Citation Nr: 1330601	
Decision Date: 09/24/13    Archive Date: 09/30/13

DOCKET NO.  12-16 575	)	DATE
	)
	)

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


THE ISSUE

Entitlement to service connection for tinnitus. 


REPRESENTATION

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


ATTORNEY FOR THE BOARD

Marne Marotta, Associate Counsel







INTRODUCTION

The Veteran served on active duty from December 1963 to September 1983. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. 
 
FINDING OF FACT

Affording the Veteran the benefit of the doubt, tinnitus is related to military service. 


CONCLUSION OF LAW

The criteria for service connection for tinnitus have been met. 38 U.S.C.A. § 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist 

VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  Because service connection for tinnitus is granted, VA's duties to notify and assist are deemed fully satisfied and the Veteran is not prejudiced by a decision on his claim at this time. 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156, 3.159.

II.  Service Connection 

The Veteran claims that tinnitus began during service.  During his April 2011 VA audiology examination, the Veteran reported that he first noticed ringing in his ears around 1966, which worsened over time and is now constant in both ears.  

Service connection may be granted for a disability resulting from a disease or injury incurred or aggravated during military service.  38 U.S.C.A. § 1110.  Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  

Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d).

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, 492 F.3d at 1377. The Veteran is competent to report what he experiences; i.e., he is competent to report that he first experienced ringing in his ears during service, that the ringing has continued since that time, and that he currently experiences ringing in his ears. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); Layno v. Brown, 6 Vet. App. 465, 469 (1994).

The Veteran served as a supply officer during service, but worked on the flight line from 1964 to 1966.  The Veteran reported that during this time, he worked around jet engines without hearing protection, and that his tinnitus began in 1966.  Post-service, the Veteran reported minimal noise exposure. 

Although the record is silent on complaints of or treatment for tinnitus during service, the Veteran is competent to describe the nature and extent of his in-service noise exposure. There is no evidence that the Veteran is not credible. Thus, the Board finds that the Veteran had noise exposure during service. 38 C.F.R. § 3.159(a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).

In April 2011, the Veteran was afforded a VA audiological examination.  In a May 2011 opinion, the same examiner opined that the Veteran's tinnitus is not as least as likely as not related to his military service because the there were no complaints of tinnitus in the Veteran's record. 

After review of the evidence, the Board finds that service connection is warranted for tinnitus based on the competent and credible evidence that the Veteran's tinnitus began during service and has existed since. The Board acknowledges that the record includes a negative nexus opinion from a VA examiner.  However, the Board notes that the examiner did not consider the Veteran's lay statements regarding the onset of and continuity of the Veteran's tinnitus. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  Thus, the VA examiner's opinion regarding the Veteran's tinnitus is of limited probative value. 

The Board finds the evidence is in equipoise as to whether the Veteran's tinnitus is related to service. The evidence of record demonstrates that the Veteran has tinnitus; that he was exposed to acoustic trauma in service; that he had minimal noise exposure post-service; and that he has experienced tinnitus since service.  In such circumstances, the benefit of the doubt goes to the Veteran; service connection is granted. 38 U.S.C.A. § 5107(b).

ORDER

Entitlement to service connection for tinnitus is granted. 



______________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs