Citation Nr: 1333259 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 13-07 032 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for recurrent bilateral tinnitus. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD Michael Sanford, Associate Counsel INTRODUCTION The Veteran had active military service from February 1966 to February 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. FINDING OF FACT Resolving all doubt in the Veteran's favor, tinnitus had its clinical onset in service. CONCLUSION OF LAW Tinnitus was incurred in service. 38 U.S.C.A. §§ 1110, 1154, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Since the entire benefit sought on appeal has been granted, no purpose would be served by undertaking an analysis of whether there has been compliance with the notice and duty to assist requirements set out at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002)). See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Merits 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. "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. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In the case of a veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, the Secretary of the VA shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304. The Veteran claims that service connection is warranted for tinnitus. Specifically, the Veteran asserts that ringing in his ears began after he was positioned near a grenade which exploded. The Veteran's exposure to noise and the onset of tinnitus in service is conceded as the Veteran served in combat and the Board construes his claim that pertinent disability had its onset in combat. He was in combat as evidenced by his receipt of the Combat Infantryman Badge. A September 2011 private audiology record confirms that the Veteran has tinnitus. As the Veteran has shown a current disability and in-service incurrence of that disability, the Board must decide whether a nexus between the Veteran's in-service noise exposure and his tinnitus exists. The Veteran was afforded a VA examination to determine the etiology of his tinnitus. The examiner concluded that the ringing in the ears experienced by the Veteran about once per week is not unusual in the general public. As such, the VA examiner concluded that it was less likely than not that the Veteran's tinnitus was related to his military service. Despite the findings of the VA examination, the Board observes that tinnitus is the type of disorder associated with symptoms capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). While service connection for tinnitus may not be established based on a continuity of symptomatology as it is not a chronic disease specified under 38 C.F.R. § 3.309(a), the Veteran is competent to render a diagnosis of tinnitus. At his October 2010 VA examination, the Veteran recounted an incident during combat where the Veteran was serving on the front lines and a grenade exploded nearby. The Veteran had to be removed from the front lines due his inability to hear. The Veteran also specified that once his hearing was restored, he began having tinnitus intermittently. While the Veteran noted no ear, nose or throat trouble on his entrance report of medical history, he did note such trouble on his separation report of medical history. See September 1965 Report of Medical History; December 1967 Report of Medical History. There is no contradictory evidence of record as to the Veteran's in-service development of tinnitus nor is there evidence rebutting the Veteran's assertion that he has suffered intermittent ringing in his ears since service. Indeed, the opinion of the VA examiner does not challenge the Veteran's assertion that he has suffered ringing in his ears intermittently since service. The Board finds the lay evidence of record of in-service tinnitus and chronicity of the disability since then are both competent and credible. For the reasons discussed above, the Board finds the evidence is at least in equipoise regarding the in-service incurrence of the Veteran's current tinnitus. Therefore, resolving all reasonable doubt in favor of the Veteran, the Board concludes that service connection for recurrent tinnitus is warranted. His credible statements regarding the onset of his tinnitus, and lack of contradictory evidence of record, is sufficient to establish the in-service onset of tinnitus. ORDER Service connection for tinnitus is allowed. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs