Citation Nr: 1335732 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 10-24 222 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD A. Odya-Weis, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1966 to April 1969, with confirmed service in the Republic of Vietnam. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In this regard the Board has construed a statement submitted by the Veteran in December 2007 as a timely notice of disagreement with the November 2007 rating decision. Subsequent to the November 2007 rating decision, jurisdiction over the case was returned to the RO in Des Moines, Iowa. The record before the Board consists of the Veteran's paper claims file and an electronic file known as Virtual VA. FINDING OF FACT Tinnitus is etiologically related to the Veteran's active service. CONCLUSION OF LAW Tinnitus was incurred in active service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As a preliminary matter, the Board notes that the Veteran has been provided all required notice, including notice pertaining to the disability-rating and effective-date elements of his claim. In addition, the evidence currently of record is sufficient to substantiate his entitlement to service connection for tinnitus. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013) or 38 C.F.R. § 3.159 (2013). Legal Criteria Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis The Veteran asserts that his tinnitus was incurred in service and that he has experienced continuous symptoms ever since. He contends that his tinnitus was caused by in-service noise exposure based in part on his military occupational specialty (MOS) of air traffic controller. He also reported acoustic trauma from service in the Republic of Vietnam, including being in close proximity to a mortar explosion during the Tet Offensive, which resulted in three days of hearing loss, and being subjected to other artillery fire. The Veteran's service treatment records (STRs) are negative for evidence of tinnitus. In May 2007, the Veteran filed a formal claim for compensation and was afforded a VA audiological examination in October 2007. The Veteran reportedly gave a history of noise exposure in the military and working on a railroad, and of experiencing a constant, high-pitched ringing in both ears for the past 8-10 years. The VA examiner opined that the Veteran's tinnitus was less likely than not caused by or a result of acoustic trauma in service due to its onset 8-10 years ago. In December 2007, the Veteran alleged that he misunderstood the October 2007 VA examiner to have asked when the tinnitus began to bother him, rather than when the tinnitus first presented. The Veteran asserted that the tinnitus began in February 1968, but became a problem 8-10 years ago. In March 2008, the Veteran was afforded a second VA audiological examination, providing history of his tinnitus beginning in February 1968, and becoming a problem 8-10 years ago. The VA examiner opined that, because the Veteran had no complaints of tinnitus in service and later had occupational noise exposure, it was less likely than not related to in-service noise exposure. In March 2009, the Veteran submitted a private treatment record stating that the Veteran had bilateral tinnitus which presented as a steady, high-pitched, high frequency sound. The private physician noted artillery exposure during the Tet Offensive in Vietnam. The physicians assessment was tinnitus with a history since 1968 and that the tinnitus was most likely from noise exposure from artillery fire in service. In March 2011, the Veteran underwent another audiological examination by a private audiologist who discussed the Veteran's medical history. The audiologist determined that the Veteran had high frequency hearing loss that was predominantly due to exposure to excessive noise in the military and commented that, "tinnitus is a common characteristic in noise induced hearing loss." The Board has found the Veteran's statements concerning the onset of tinnitus in service and its continuity since service to be competent and credible. Consistently throughout this claim and appeal, the Veteran has stated that he has experienced tinnitus ever since service and has sufficiently explained discrepancies found in the October 2007 VA examination report. In addition, the Veteran's DD-214 lists his MOS as air traffic controller. His service records also confirm that he served in Vietnam. Therefore, the Board concedes that the Veteran experienced acoustic trauma in service. The Board acknowledges that the opinions of the VA examiners are against the Veteran's claim. However, the Board finds that the October 2007 opinion of little probative value as the Veteran's credible lay statements of misunderstanding the examiner negate the only underlying rationale for the negative opinion. Similarly, the March 2008 opinion has little probative value because the examiner did not address the Veteran's statements relating to the onset of his symptoms. The Board finds the two private medical records submitted by the Veteran bolster the Veteran's lay contentions that his tinnitus began in service such that the evidence in favor of the claim is at least in equipoise with that against the claim. As such, the benefit of the doubt must be resolved in favor of the Veteran. Accordingly, entitlement to service connection for tinnitus is warranted. ORDER Service connection for tinnitus is granted. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs