Citation Nr: 1333303 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 13-20 713 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for recurrent tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Kalisse Anderson, Associate Counsel INTRODUCTION The Veteran had active military service from August 1966 to May 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. On the Veteran's November 2012 Notice of Disagreement he stated that he disagreed with the RO's decision regarding his claim for hearing loss and tinnitus. However, the Veteran's VA-Form 9 clarified his appeal and the only claim on appeal is that related to tinnitus. FINDING OF FACT Affording the Veteran the benefit of the doubt, recurrent tinnitus is etiologically related to his period of active service. CONCLUSION OF LAW Recurrent tinnitus was incurred in active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify an 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). Analysis The Veteran asserts he is entitled to service connection for recurrent tinnitus as directly related to his active service. Specifically, he alleges that he was exposed to acoustic trauma while working as a cargo handler for the U.S. Army, which included service in the Republic of Vietnam as well as stateside. He contends that he suffers from recurrent tinnitus ever since service. See, e.g. November 2012 Notice of Disagreement. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence that an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of an in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Here, there is evidence both for and against the claim. First, his service treatment records do not reveal complaints or a diagnosis of tinnitus. During the development of the Veteran's claim, he was provided a VA examination where the VA examiner noted in his report that the Veteran did not have recurrent tinnitus. Following a review of the claims file, and an audiological examination, the VA examiner opined that the Veteran's recurrent tinnitus is less likely as not related to his active service. The examiner based this conclusion on the lack of evidence in the Veteran's service medical records of a diagnosis or complaint of tinnitus and that there is no evidence of acoustic trauma during his service. In addition, he noted that the Veteran stated he did not have recurrent tinnitus. See June 2012 VA Audiological Examination. Nevertheless, there is evidence of a current disability and the issue becomes whether the Veteran's tinnitus either began during or was otherwise caused by his military service. Second, the Veteran did have service in Vietnam. His military records state that his military occupational specialty (MOS) was as a cargo handler. Normally, this is a not a MOS that would subject a person to acoustic trauma; however, the Veteran states in his November 2012 Notice of Disagreement that he was exposed to loud acoustical traumas from gunfire and explosions without the benefit of hearing protection. See November 2012 Notice of Disagreement. Additionally, on his separation examination from military service he noted on his Report of Medical History that he did have or was currently suffering from ear, nose and throat trouble. See May 1968 Report of Medical History. In 1972, the Veteran attempted to re-enlist into the military; on his re-enlistment examination, he stated that he did not know if he suffered from ear, nose and throat trouble. See March 1972 Report of Medical History. After considering all of the evidence in its entirety, the Board finds the Veteran's reports of his experiences while serving in Vietnam consistent with the circumstances of his service and concludes that he did experience acoustic trauma while in the military. See 38 U.S.C.A. § 1154(a). Additionally, the Veteran stated in his July 2011 Claim, his November 2012 Notice of Disagreement and his June 2013 VA-Form 9 that he had experienced ringing in his ears while on active duty and it has continued since that time. See July 2011 VA-Form 21-526; see also November 2012 Notice of Disagreement; June 2013 VA-Form 9. He also states that the reason there is no diagnosis of tinnitus in any of his service or post-service medical reports is due to the fact that he was unaware that tinnitus is considered a disability. See June 2013 VA-Form 9. The Board finds the Veteran's statement credible to support a continuity of symptomatology. In the instant case, even though the VA examiner provided a negative nexus medical opinion, the Board notes that tinnitus is the type of disability associated with symptoms capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). In certain cases, such as this one, his lay testimony is competent evidence showing a current diagnosis of tinnitus. The statements made on the Veteran's Notice of Disagreement, VA-Form 9, as well as the Veteran's statement in support of his claim dated July 2011 and his Reports of Medical history are sufficient to establish an in-service diagnosis of tinnitus and to establish that the Veteran has had ringing in his ears since service and continuing through the present. In this respect, even though he reported that he did not have recurrent tinnitus during the VA examination, he has provided sufficient clarification and evidence as to why he believes his tinnitus has existed since being exposed to acoustic trauma in service. The Board finds the Veteran's statements that he has suffered from tinnitus since service are credible and is led to conclude that the evidence of record is in relative equipoise, thus mandating that reasonable doubt be resolved in favor of the Veteran. As such, for the reasons discussed above and resolving all doubt in favor of the Veteran, the Board concludes that service connection for recurrent tinnitus is warranted. ORDER Service connection for recurrent tinnitus is granted. ____________________________________________ M. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs