Citation Nr: 1336366 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 08-18 822 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION The Veteran served on active duty from February 1966 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The record before the Board includes an electronic file known as Virtual VA. In April 2012, the Board denied entitlement to service connection for bilateral hearing loss. At that time, the Board also remanded the claim of service connection for tinnitus to the RO for additional development. After the most recent supplemental statement of the case was issued in February 2013, the Veteran submitted additional argument and evidence. Moreover, the RO associated additional VA treatment records with the Veteran's Virtual VA electronic claims file. In February 2013, the Veteran's representative waived review of the additional evidence by the RO. In March 2013, the Veteran also submitted a waiver of RO review. See 38 C.F.R. § 20.1304(c) (2013). FINDING OF FACT The Veteran's tinnitus cannot be reasonably disassociated with his active military service. CONCLUSION OF LAW Tinnitus was incurred in active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and assist veterans in substantiating claims for VA benefits. 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). Without deciding whether the notice and development requirements have been satisfied, the Board is not precluded from adjudicating the Veteran's claim, because the Board is granting service connection. 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. 49747 (1992). Service connection may be granted for disability due to a disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. Moreover, service connection may be granted for any disease diagnosed after separation, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran contends that he has tinnitus as a result of exposure to loud noise during service. Specifically, he states that his duties as an aircraft loadmaster placed him in close vicinity to noise from C-130 aircraft without hearing protection. The Veteran recalls that he wore headphones at times for communication with pilots, but they were not a substitute for hearing protection. He states that he was not exposed to a noisy environment other than in service. Although he indicated in his November 2006 application for benefits that his tinnitus began in 1990, the Veteran stated in March 2013 that he had tinnitus before he left service and that he was never specifically asked by any doctor during service whether he had tinnitus. The Veteran submitted a statement from this wife dated in May 2012. The record reflects that they were married during the Veteran's period of active duty service. She states that the Veteran's hearing problems began in late 1969 when he returned from service and got worse over time. The Veteran's wife recalls that he complained of "ringing" sounds on a few occasions and that he would notice other sounds that she did not hear. She believes that the problems are related to the time spent on the flight lines and on C-130 aircraft. The Veteran's service treatment records contain evidence weighing both in support and against the claim. On one hand, the records contain no reference to noise exposure or specifically to tinnitus. Additionally, periodic examinations in March 1966, October 1966, November 1967, November 1968, and the separation examination in September 1969 show normal ear examinations. However, the service records document that the Veteran was an aircraft loadmaster and that he was regularly assessed for flight duty. Thus, he was likely exposed to loud noise from aircraft as he states. Moreover, from August 1966 to May 1968, the Veteran was seen for complaints regarding his ears on no fewer than six occasions. Although tinnitus was no specifically identified, the entries note pain in both ears, a "plugged" feeling, red tympanic membranes, debris in the ear, an infected ear lobe, and a "stuffy" feeling in both ears. This is at least evidence of inservice ear problems even without express mention of tinnitus. Furthermore, the symptoms the Veteran complained of may have been tinnitus, but he recalls that he was never asked about that term. There are no postservice medical records referencing a complaint of tinnitus for nearly forty years after the Veteran's service. The Board does not find this absence of evidence to be particularly probative of the claim as the mere absence of medical records does not contradict a Veteran's statements about his symptom history. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). In May 2007, a VA audiological examination was conducted in connection with the claim. In the April 2012 remand, the Board determined that the examination was not adequate for VA purposes for the tinnitus claim. Thereafter, the Veteran underwent another VA audiological examination in May 2012 pursuant to the Board's remand instructions. After noting that the Veteran had tinnitus and that he had experienced it for over twenty years, the VA examiner provided an opinion that the tinnitus is less likely than not caused by or a result of military noise exposure. The examiner explained that tinnitus is known to be consistent with hearing loss and/or standard threshold shift, indicative of a noise injury. According to the examiner, a comparison of the service treatment records does not reveal a standard threshold shift in either ear at separation. Because the claims file was not available for review at that time, an addendum was provided in December 2012. The claims file was reviewed and the opinion remained the same. The Board finds the VA examiner's opinion to be moderately compelling in that it explains what tinnitus is known to be consistent with-hearing loss and a standard threshold shift. However, the Board does not find the opinion to be entirely persuasive as the examiner appears to have discounted the Veteran's lay statements and an over twenty year history of tinnitus without explanation. The presence of tinnitus is capable of lay observation as it is readily identifiable by its features. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). Although commenting on whether tinnitus is related to noise exposure requires a certain amount of medical expertise, the Veteran and his wife are competent to attest to what the Veteran experienced during service, shortly thereafter, and since that time. The Board finds no reason to doubt the credibility of the Veteran's statement in March 2013 and his wife's statement from May 2012 as to the onset of the Veteran's tinnitus. At the least, their statements raise a reasonable doubt as to the whether the Veteran's tinnitus was incurred in service. Accordingly, there is a competent and credible basis to conclude that the Veteran's current tinnitus has been present since service. Given that there is less than a preponderance of evidence of record that disassociates the Veteran's current tinnitus from his active duty service, the Board finds that the evidence is at least in equipoise and, therefore, applying the benefit-of-the-doubt doctrine, service connection is warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for tinnitus is granted. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs