Citation Nr: 1338201 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 09-39 183 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from September 1967 to September 1970, including honorable service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which denied the benefit sought on appeal. Jurisdiction of the Veteran's claims file is currently at the Montgomery, Alabama RO. In addition to the paper claims files, the Veteran also has an electronic claims file in Virtual VA and VBMS. The Board has reviewed both the paper and electronic claims files in rendering this decision. FINDINGS OF FACT There is at least an approximate balance of positive and negative evidence as to whether the Veteran has tinnitus as a result of active service. CONCLUSION OF LAW Resolving doubt in favor of the Veteran, tinnitus was incurred during the Veteran's active duty 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 FINDINGS AND CONCLUSION Duties to Notify and Assist The Board finds that VA has substantially satisfied the duties to notify and assist, as required by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this appeal given the favorable nature of the Board's decision. Any error in the failure to provide notice involving the downstream elements of rating and effective date is harmless at this time, and can be corrected by the RO following the Board's decision. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Legal Criteria Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). In adjudicating these claims, the Board must assess the competency and credibility of the veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). Lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses' personal knowledge. Barr v. Nicholson, 21 Vet. App. 303 (2007), Layno v. Brown, 6 Vet. App. 465 (1994). Analysis The Veteran contends that he has bilateral tinnitus related to his significant noise exposure in service. He essentially contends that tinnitus had its onset in service and has continued since. Service treatment records show no signs or complaints of tinnitus. In his own report of medical history dated in August 1970, the Veteran specifically denied any ear trouble or hearing loss. Physical examination at discharge was negative for any notations of tinnitus. The Veteran was afforded a VA audiological examination in June 2011 during which he was diagnosed as having tinnitus. The Veteran described it as occasional, bilateral, "ringing" tinnitus. The examiner noted that the Veteran was Field Wireman in service that was attached to an artillery battalion in Republic of Vietnam, and acoustic trauma is conceded. In addition to in-service noise exposure, the Veteran reported a 31 years history of occupational noise exposure from working in a paper mill. The Veteran was not provided hearing protection in service and only in the later years of his civilian occupation did he use hearing protection. The examiner could not identify the onset of the Veteran's tinnitus, but indicated the Veteran had current complaints of intermittent tinnitus. Following review of the Veteran's claims file, and interview and examination of the Veteran, the examiner opined that the Veteran's tinnitus is less likely than not related to his in-service noise exposure. In reaching this conclusion, the VA audiologist noted the Veteran's in-service history of noise exposure as well as his post-service occupational noise exposure. The examiner also generically noted that the Veteran "denied the presence of tinnitus in 2004" during VA treatment. Moreover, she stated that although there can be a delayed onset of tinnitus symptoms, its onset 35 years after exposure make it less likely than not related to active duty noise exposure. Upon careful review of the evidence of record, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran's currently diagnosed tinnitus is related to his military service. First, tinnitus is a subjective disorder and identifiable primarily through a patient's report of symptoms, and as such, the Veteran is competent to diagnose tinnitus and to provide a statement as to when it began. As his service duty MOS was as a Field Wireman attached to an artillery battalion in Republic of Vietnam, it is highly probable that he was exposed to hazardous noise, and thus his exposure is conceded. As noted, the VA examiner found that the Veteran's tinnitus was not caused by or a result of in-service noise exposure, in part, because he did not report tinnitus when he first began to seek treatment at the VAMC in 2004. However, the Veteran has described his tinnitus as occasional, rather than constant. Moreover, she did find that tinnitus can have a delayed onset, even if she disagreed that it happened in this case. The Board assigns the June 2011 VA examination report some evidentiary weight, but is not conclusive. Although the Veteran did not provide strong statements regarding the onset of his tinnitus, the Board with resolve reasonable doubt in his favor and grant entitlement to service connection for bilateral tinnitus. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for tinnitus is granted. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs