Citation Nr: 1337828 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 13-10 826 ) 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 A. Odya-Weis, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1972 to April 1983. This case is before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of the St. Louis, Missouri, Regional Office (RO) of the Department of Veterans Affairs (VA). 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, 1131, 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, 1131; 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. 38 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 contends that service connection is warranted for tinnitus because it developed in service as a result of his exposure to excessive noise and has continued since service. The Veteran's DD 214s show that he served as an air traffic controller and as an aircraft pneudraulic systems specialist. Although his service treatment records (STRs) are negative for evidence of tinnitus, they and the report of an April 2012 VA examination show that he incurred hearing loss in the right ear and aggravated hearing loss in the left ear during service as a result of excessive noise exposure. In his October 2011 formal claim for compensation for tinnitus, he reported that he developed tinnitus in 1972 due to daily exposure to jet engine noises without the benefit of hearing protection, that the tinnitus has continued since then, and that he had no post-service exposure to loud noises without proper hearing protection. In April 2012, the Veteran was afforded a VA audiological examination and reportedly gave a history of experiencing tinnitus approximately once a month for the past 15-20 years with episodes lasting up to 15 minutes. He also reportedly indicated that he could not relate tinnitus to an acoustical event. The VA examiner opined that the Veteran's work on jet aircraft placed him around high risk noise even while wearing hearing protection and that the Veteran's tinnitus is less likely than not a symptom associated with the Veteran's hearing loss because he displayed hearing loss while in the service and did not complain of tinnitus. In addition, the VA examiner opined that the Veteran's tinnitus is less likely than not caused by or a result of service noise exposure because "his tinnitus was not time locked to his military service." In the Veteran's June 2012 notice of disagreement, he contended that he began experiencing tinnitus in service as a result of acoustic trauma and that it had continued to this day. In April 2013, the Veteran perfected his appeal to the Board (via VA Form 9), asserting that he misunderstood the VA examiner when asked when his tinnitus began and stated the incorrect time frame. That same month, the Veteran's representative submitted a statement noting that the Merck Manual of Diagnosis and Therapy finds "high frequency tinnitus usually accompanies (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 April 2012 VA examination report. Moreover, the Veteran served in positions in which he would have been exposed to excessive noise and he has in fact been granted service connection for bilateral hearing loss disability associated with such noise exposure. The Board acknowledges that the VA examination opinion is against the Veteran's claim. However, the Board finds the April 2012 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. The Board finds the STRs 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