Citation Nr: 1336309 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 11-24 762 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1990 to August 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that tinnitus was initially denied by a July 2010 rating decision. However, a few months later the Veteran submitted additional relevant evidence. Thus, in accordance with 38 C.F.R. § 3.156(b) this decision is being considered on the merits. A videoconference hearing was held before the undersigned Veterans Law Judge in May 2012. A transcript from that hearing was associated with the Veteran's file. FINDING OF FACT Tinnitus had its onset in service and has continued since. CONCLUSION OF LAW Resolving all doubt in the Veteran's favor, tinnitus was incurred in 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 I. VA's Duties to Notify and Assist In this decision, the Board grants the claim for service connection for tinnitus. As this represents a grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary. II. Analysis The Veteran seeks service connection for tinnitus. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that 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). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service treatment records are negative for complaints or clinical findings of tinnitus while in service. The Veteran's DD Form 214 shows a military occupational specialty of ground surveillance systems operator. Post-service private treatment records show that in February 2008, the Veteran underwent an audiological examination. The Veteran reported that while in service, a fellow soldier had discharged his handgun near the Veteran's ear and that he had experienced ringing in his ear ever since that time. A VA audiological examination was conducted in January 2011. The Veteran reported the same onset as noted above, and that his tinnitus has continued since the March 1991 incident. The VA examiner reviewed the Veteran's claims file and noted that the Veteran had reported that he used ear protection during recreational target practice, but not while hunting. The examiner also noted the Veteran's post-service employment history. The Veteran was diagnosed with tinnitus. The examiner opined that it was not as least as likely as not that the Veteran's tinnitus was related to noise exposure. The rationale provided was that there was no documentation in the Veteran's claims file to support a claim of tinnitus until 14 years after military service. The Veteran was afforded a videoconference hearing in May 2012. He stated that his first significant exposure to acoustic trauma was when a handgun was fired close to his ear in service. He also reported that he served as a ground surveillance systems operator and routinely did not wear hearing protection during field exercises because he was unable to operate the radio and radar, in addition to listening to the telephone, while wearing hearing protection. He stated that he was exposed to "hundreds of thousands of rounds on the range." The Veteran testified that he had experienced tinnitus ever since his separation from service. The record also includes witness statements from the Veteran's mother, brother and friend. The lay statements report observations of the Veteran and his complaints of ringing in his ears since service. After a review of the entire record, the Board finds that service connection is warranted. The Veteran has credibly asserted that his tinnitus began during service after a weapon was discharged next to him and that the tinnitus has continued since. He is currently diagnosed with tinnitus. The Board acknowledges that the VA examiner determined that tinnitus was less likely than not related to service because the disorder was not documented until 14 years after service. However, tinnitus is a diagnosis based on purely subjective complaints. In Barr v. Nicholson, 21 Vet. App. 303, 305 (2007), the Court held that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. Id. Under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). The mandate to accord the benefit of the doubt is triggered when the evidence has reached a stage of equipoise. In this matter, after consideration of the competent and credible assertions by the Veteran as to the onset and continuing nature of his tinnitus, the Board is of the opinion that this point has been attained. As such, after resolving all doubt in the Veteran's favor, the Board concludes that service connection for tinnitus is warranted. ORDER Entitlement to service connection for tinnitus is granted. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs