Citation Nr: 1334835 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 10-38 805 ) 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 Mitchell, Kimberly A. INTRODUCTION The Veteran served on active duty from June 1965 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for tinnitus. FINDING OF FACT The Veteran has tinnitus that had onset during active 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 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2013). Because the only decision rendered by the Board in the instant document is entirely favorable to the Veteran, any failure to notify or assist the Veteran cannot be prejudicial to the Veteran. Therefore, no further discussion as to the duties is necessary. 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 (West 2002); 38 C.F.R. § 3.303 (2013). Shedden v. Principi, 281 F.3d 1163 (2004). Service connection may be granted for a disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Buchanan v. Nicholson, 451 F.3d 1337 (2006). The Veteran contends that his currently diagnosed tinnitus resulted from noise exposure during service while working as a boatswain's mate. The Board considers the Veteran's account to be credible. Furthermore, his service personnel records, confirm that he served as a boatswain's mate while in Vietnam. In any event, VA determined that the Veteran had been subjected to service noise exposure as a basis for the grant of service connection for hearing loss. Therefore, exposure to noise during service is conceded. The Veteran's service medical records are negative for complaints or clinical findings of tinnitus. A June 1969 separation physical report shows that the Veteran scored 15/15 bilaterally on a whispered voice test, but audiometric testing was not performed. Nevertheless, in the July 2009 and June 2013 VA examinations, and in an August 2013written statement, the Veteran asserted that he had experienced tinnitus symptoms since noise exposure during his active service. Documented in the report of a July 2009 VA audiology examination is the Veteran's complaint of ongoing tinnitus for more than 25 years. The examiner opined there was a less than 50 percent probability that the Veteran's tinnitus was related to his service. In support of that opinion, the examiner stated that tinnitus was not mentioned in the Veterans service medical records, the gap in time between separation and onset of tinnitus symptoms was too great, and the tinnitus was mild, infrequent, and of short duration. A July 2010 VA audiological examiner opined that it was a less than a 50 percent probability that the Veteran's tinnitus was secondary to his hearing loss. In support of that opinion, the examiner stated that tinnitus and hearing loss can occur separately or together, and have varying causes. The examiner stated that the Veteran did not associate his tinnitus with service, and first noticed it too long after service for it to have been caused by service. An addendum opinion was provided in August 2010. In that opinion the examiner stated that tinnitus can be a symptom of a large number of medical conditions and medications, so whether the Veteran's tinnitus was a symptom of his hearing loss could not be answered without resorting to speculation. In June 2013, the Veteran was provided another in-person VA audiological examination. The Veteran reported bilateral tinnitus described as ringing occurring nine to ten times per day that the Veteran noticed at least 40 years ago. As for causation, the examiner opined it was a less than 50 percent probability the Veteran's tinnitus was caused by or a result of military noise exposure. The rationale provided was that although the Veteran's claims file was not available for review, 2009 and 2010 testing indicated there were no complaints of tinnitus in the Veteran's file. Additionally, the examiner stated the Veteran did not relate tinnitus to anything specific in service. The examiner opined that as to etiology of tinnitus it was a less than 50 percent probability the Veteran's tinnitus was associated with the service-connected hearing loss. The Board finds that the Veteran's statements are more probative than the examiners' opinions. The nexus opinions of etiology are afforded little weight because they are based on incorrect facts. The July 2009 examiner stated that the Veteran's current tinnitus was mild, infrequent, and of short duration. During the July 2009 VA audiology examination the Veteran reported that his tinnitus was a high-pitched ringing, once a day, lasted a few seconds, and had persisted for more than 25 years. The Veteran's statement was incorrectly taken to mean the Veteran had tinnitus symptoms for 25 years when in fact, all lay evidence provided by the Veteran consistently reported tinnitus since service, a period of more than 25 years. The subsequent opinions of July 2010 and June 2013 also inaccurately provide opinions based on the absence of tinnitus complaints or treatment in the Veteran's claims file and delayed onset. In an August 2013 statement, the Veteran, reported that during service he did not know what tinnitus was and reported his tinnitus symptoms had continued to worsen since service. During the June 2013 examination the Veteran reported his current tinnitus had been present for at least 40 years. The Board considers it significant that the Veteran has maintained a credible report of tinnitus since service and finds his statements as evidence favorable to a finding of onset during service. The Veteran's statements of onset of his current tinnitus during service are competent and credible. The Board finds those statements more probative of the etiology of his current tinnitus than the other evidence of record. Therefore, his appeal must be granted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for tinnitus is granted. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs