Citation Nr: 1333729	
Decision Date: 10/25/13    Archive Date: 11/06/13

DOCKET NO.  09-24 184	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUE

Entitlement to service connection for tinnitus.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

J. L. Prichard, Counsel


INTRODUCTION

The Veteran had active service from September 1966 to August 1968.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2008 rating decision of the Newark, New Jersey, regional office (RO) of the Department of Veterans Affairs (VA).  


FINDING OF FACT

The Veteran has current tinnitus as a result of a disease or injury in active service.  


CONCLUSION OF LAW

Tinnitus was incurred due to active service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.310(a) (2013).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VCAA

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  

Given the Board's favorable decision, no further notice or assistance is required to aid the Veteran in substantiating the claim.  

Service Connection

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. 


The service treatment records are negative for any complaints or treatment pertaining to tinnitus.  Tinnitus was not diagnosed on the July 1968 discharge examination, and the Veteran denied having ear trouble on the Report of Medical History obtained at that time.  

The initial post service documentation of tinnitus is found in the report of a September 2003 private examination.  

In a May 2008 statement, the Veteran reports that he has experienced tinnitus manifested by constant ringing since in or around 1966.  He said that this slowly progressed and became worse over time until the present day. 

Entitlement to service connection for bilateral hearing loss was established in a June 2008 rating decision.  

The Veteran was afforded a VA audio examination in July 2008.  The examiner noted that the Veteran's service in an artillery battery and the Veteran's reports of in-service noise exposure.  After service he had worked in a trade show, where he reported some noise exposure from hammering; but added that the noise was much worse in the service.  On examination, the Veteran could not recall an exact date or circumstance of the onset of the tinnitus, but reported that it occurred over time.  The examiner opined that it was less likely than not that the Veteran's hearing loss was due to active service.  He further opined that it was less likely than not that the Veteran's tinnitus was due to acoustic trauma while working in the field artillery in service.  The rationale for the opinion included the fact that the Veteran separated from service with normal hearing, bilaterally; his reports of occupational activities after service; wearing hearing protection during service; and the fact that tinnitus reportedly "occurred over time" and not "immediately after firing" or in the service.  

With regard to the elements of service connection, the Veteran has a current disability in that tinnitus was confirmed by the September 2003 private examination and the July 2008 VA examination.  

Moreover, the Veteran is competent to state that he has tinnitus and that he experienced tinnitus while still on active duty.  Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).  The Veteran has reported the onset of tinnitus in service, and continuing since.  The Board finds it credible that he was exposed to acoustic trauma during service, and notes that he served in the artillery where even with hearing protection it is likely he sustained some degree of acoustic trauma.  

As to the relationship between the current tinnitus and active service, the only medical opinion is the negative opinion of the July 2008 VA examiner.  While the examiner provided a rationale for this opinion, the opinion is flawed because the examiner did not consider an accurate history.

The examiner indicated that one reason tinnitus was not related to service was that tinnitus reportedly "occurred over time" and not "immediately after firing" or in the service.  However, in his May 2008 statement, the Veteran wrote that tinnitus began in active service, or around 1966.  What the Veteran did report regarding time is that the tinnitus has become worse with time, and not that it eventually began after time had passed.  Hence the opinion is of little probative value.  Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008).

Tinnitus is a chronic disease, if viewed as an organic disease of the nervous system.  38 U.S.C.A. §§ 1101, 1112(a) (West 2002).  As such a link between the current tinnitus and service can be established by the Veteran's reports of a continuity of symptomatology.  38 C.F.R. § 3.303(b); cf. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  The Veteran has provided competent and credible evidence in this regard.  The Board resolves reasonable doubt in favor of the Veteran and finds that service connection for tinnitus is warranted.  38 U.S.C.A. § 5107(b) (West 2002).


ORDER

Entitlement to service connection for tinnitus is granted.  



____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs