Citation Nr: 1335810 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 11-31 541 ) 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: Missouri Veterans Commission ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran had active duty service from October 1965 to October 1967. This matter comes properly before the Board of Veterans Appeals (Board) on appeal from an October 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri (RO). FINDING OF FACT The Veteran's current tinnitus cannot be reasonably disassociated from his military service. CONCLUSION OF LAW Tinnitus was incurred in active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the issue on appeal herein. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). This is so because the Board is taking action favorable to the Veteran by granting the issue at hand. As such, this decision poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). In multiple written statements of record, the Veteran contended that his tinnitus was the result of exposure to noise from gunfire and artillery during his active duty service. The Veteran asserted that he had ringing in his ears that onset during active service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be established for any 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). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). Service connection may be established under the provisions of 38 C.F.R. § 3.303(b) when the evidence, regardless of its date, shows that a veteran had a chronic condition in service or during the applicable presumptive period. In addition, certain chronic diseases, including other organic diseases of the nervous system, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309 (2013). Service treatment records associated with the claims file are negative for a diagnosis of or treatment for tinnitus. The Veteran's DD Form 214 revealed that his military occupational specialty (MOS) was Field Artillery Crewman. In his June 2010 claim, the Veteran asserted that he had tinnitus that onset during service in May 1967. In a September 2010 VA audio examination report, the Veteran indicated he first noticed his bilateral, constant tinnitus around ten years ago. He reported in-service noise exposure while serving in an artillery unit due to gunfire and howitzers in Vietnam without hearing protection. As a civilian, the Veteran reported working in sheet metal for six months prior to enlistment at McDonnell Douglas. Following service separation, he indicated that he worked a total of 37 years for Laclede Gas Company, servicing furnaces and air conditioners. He reported recreational noise exposure from deer hunting for the past 13 years and target shooting three or four times over the last six months with hearing protection. The VA examiner opined that the Veteran's tinnitus was not as least as likely as not related to his military service. In the cited rationale, the examiner highlighted that there were no complaints of tinnitus in the Veteran's service treatment records. In a December 2010 statement, the Veteran indicated that the September 2010 VA examiner had asked him how long he had tinnitus and whether it was two, three, five, or ten years. The Veteran asserted that he told the September 2010 VA examiner that he had tinnitus for "alot longer than 10 years". He again indicated that ringing in his ears started before he left Vietnam and that the ringing was a lot louder now. In his November 2011 substantive appeal, the Veteran asserted that he had was in an armor unit during reserve service and was again exposed to loud noise. After a thorough review of the evidence of record, the Board concludes that service connection for tinnitus is warranted. Post-service evidence of record reflected findings of tinnitus, as bilateral, constant tinnitus was clearly noted on physical examination in the September 2010 VA audio examination report. The Board has also considered the Veteran's statements concerning in-service noise exposure as well as his documented duty assignment. 38 U.S.C.A. § 1154(a) (West 2013). Service personnel records, including his DD Form 214, demonstrated that the Veteran served as a Field Artillery Crewman. The Veteran's reported duties comport with the nature of his MOS and his duty station. There is no evidence of record demonstrating that the Veteran was not exposed to noise from artillery, gunfire, and howitzers during active service as asserted. As such, the Board finds the Veteran's report of in-service noise exposure competent and credible evidence. During the pendency of the appeal, the Veteran asserted that he experienced tinnitus since active service as the result of in-service noise exposure. Such lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that lay statements are competent evidence of a diagnosis if they describe symptoms that support a later diagnosis by a medical professional). The Board is cognizant that the Veteran indicated that his tinnitus began ten years ago during the September 2010 VA examination and later reported that he was also exposed to noise from tanks during reserve service. However, the Veteran's written statements of record are internally consistent, as he has repeatedly asserted and clarified that he had ringing in his ears that onset during active service in Vietnam. Based on the above, the Board finds the Veteran's assertions of experiencing tinnitus since active duty service as credible evidence. The Board finds the September 2010 VA examination report to be inadequate and of little probative value. The September 2010 VA examiner did not adequately consider the Veteran's statements that he experienced ringing in his ears since active service and instead simply noted that the Veteran's service treatment records did not show treatment for tinnitus. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that a veteran's statement is competent evidence as to events that are capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that a veteran's statements are competent evidence of what comes to him/her through his/her senses). In view of the totality of the evidence, including the Veteran's documented in-service MOS during active duty, the current findings of tinnitus, the diminished probative value of the September 2010 VA examination report, and the competent and credible reports of in-service hazardous noise exposure and continuous symptoms of tinnitus that onset during active service, the Board finds that Veteran's tinnitus cannot be reasonably disassociated from his active military service. The Board finds that the evidence is at least in equipoise and, therefore, applying the benefit-of-the-doubt doctrine, service connection for tinnitus is warranted. Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for tinnitus is granted. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs