Citation Nr: 1333994 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 11-14 597 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs ATTORNEY FOR THE BOARD J. Taylor, Associate Counsel INTRODUCTION The Veteran had active military service from October 1961 to February 1966. The Veteran served in Vietnam from February 1964 to June 1964, and was awarded the Combat Aircrewman Insignia. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. Although the Veteran filed a Notice of Disagreement with respect to the issues of entitlement to service connection for hearing loss and tinnitus, the Veteran limited his appeal on his VA Form 9 to tinnitus. In September 2011, the Veteran withdrew a request for a Board hearing. Records in the Virtual VA paperless claims processing system and the Veterans Benefits Management System have been reviewed and considered. FINDING OF FACT There is at least an approximate balance of positive and negative evidence as to whether the Veteran has tinnitus as a result of active service. CONCLUSION OF LAW Resolving doubt in favor of the Veteran, tinnitus was incurred during the Veteran's active duty service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease 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); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Under 38 U.S.C.A. § 1154, consideration is to be accorded to the time, place and circumstances of service. Where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a)(1). Additionally, a presumption is afforded a veteran if he or she is shown to have engaged in combat with the enemy in active service. 38 U.S.C.A. § 1154(b). If combat is shown, VA shall grant service connection for any disease or injury alleged to have been incurred in or aggravated by service as long as there is satisfactory lay or other evidence of service incurrence or aggravation and the injury or disease is consistent with the circumstances, conditions, or hardships of service. Id. Service connection may be granted even if there is no official record of incurrence or aggravation in such service. Id. Reasonable doubt is resolved in favor of the veteran. Id. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. Id. In adjudicating these claims, the Board must assess the competency and credibility of the veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). Lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses' personal knowledge. Barr v. Nicholson, 21 Vet. App. 303 (2007), Layno v. Brown, 6 Vet. App. 465 (1994). Analysis The Veteran contends that he developed tinnitus while serving as a helicopter mechanic and door gunner in service. Service treatment records (STRs) do not show any signs or complaints of tinnitus. On the Veteran's January 1966 separation examination, the Veteran's ears were evaluated as normal and no report of tinnitus was noted. Post-service treatment records show that the Veteran complained of tinnitus in May 2006. Tinnitus was also noted on a January 2010 private audiologic evaluation. On VA examination in December 2009, the Veteran complained of hearing loss and tinnitus. He reported that his tinnitus began in service. The Veteran reported that he was exposed to noise in service as a helicopter mechanic and door gunner. He indicated that after service, he worked as a construction laborer in both building and road construction, which included a large amount of concrete work. The Veteran denied exposure to noisy recreation. After an audiologic examination, the examiner diagnosed the Veteran with bilateral tinnitus and bilateral sensorineural hearing loss. The examiner determined that the Veteran's hearing loss and tinnitus were not caused by or a result of military acoustic trauma. The VA examiner recognized that the Veteran had in-service exposure to noise, but placed more significance on the Veteran's post-military occupational noise exposure in construction as being responsible for his hearing loss disability. He explained that the Veteran's hearing was within normal limits at discharge and he noted the Veteran has worked around a great deal of construction noise in civilian life. The examiner opined that the Veteran's tinnitus is related to his current hearing loss, which was not present at separation. The Board has considered the Veteran's lay statements and acknowledges that tinnitus is a condition under case law when lay observation has been found competent to establish the presence of the disability. Charles v. Principi, 16 Vet. App. 370 (2002). He thus meets this threshold requirement for service connection. Although there is no documentation of tinnitus in service, the Veteran's DD Form 214 reveals that the Veteran was awarded the Combat Aircrewman Insignia. Given the circumstances of the Veteran's service, the Board has accepted his reports of in-service noise exposure. With regard to a nexus under 38 C.F.R. § 3.303(a), there is probative evidence of a nexus between the Veteran's tinnitus and service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). The Board has considered the Veteran's lay statements and acknowledges that as a layman he is competent to give evidence about what he has experienced or observed. Layno v. Brown, 6 Vet. App. 465 (1994). In this regard, the Veteran's statements that he has suffered from tinnitus since service are found to be competent. Moreover, based on the evidence of record, the Board finds his statements to be credible and consistent with the circumstances of his service. As noted, the VA examiner found that the Veteran's tinnitus was not caused by or a result of in-service noise exposure, but rather was related to his current hearing loss, which was not present at separation, and is a non-service-connected disability. The December 2009 examination report is assigned some evidentiary weight, but is not conclusive. While tinnitus was not identified in the STRs, this does not preclude the grant of service connection where, as here, the Veteran reported that he had experienced tinnitus and this was consistent with the circumstances of his service. Under 38 U.S.C.A. § 1154(a), where a veteran is seeking service-connection for a disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record and all medical and lay evidence. As the Veteran has reported an onset of tinnitus during the performance of his duties as a Combat Aircrewman, the Board finds that the presumption of credibility afforded under 38 U.S.C.A. § 1154(a) applies to his description of symptoms in service. Given that tinnitus is a disability that lends itself to lay observation, and is in fact a disorder that is identifiable primarily through a patient's report of symptoms, the Board finds that the Veteran's statements of an onset of tinnitus during service and continuous tinnitus thereafter are sufficient to place the evidence of the claim at least in equipoise. Therefore, having resolved doubt in favor of the Veteran, service connection for tinnitus is granted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for tinnitus is granted. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs