Citation Nr: 1338433 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 10-20 503 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Ashley Martin, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1983 to July 1984. This matter comes before the Board of Veterans' Appeals (Board) from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Board has not only reviewed the Veteran's physical claims file, but also her Virtual VA electronic claims file to ensure a total review of the evidence. FINDING OF FACT The Veteran's tinnitus is etiologically related to her period of active service. CONCLUSION OF LAW The Veteran's tinnitus was incurred in service. 38 U.S.C.A. §§ 1131, 1132, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA is required to meet the notice and duty to assist provisions of 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. II. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). 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). Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay observable events or the presence of a disability or symptoms of a disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau, 492 F.3d at 1372, Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006). The Board is charged with the duty to assess the credibility and weight given to lay evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), Wensch v. Principi, 15 Vet. App. 362, 367 (2001). When considering whether lay evidence is satisfactory, the Board may properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007). The Veteran seeks service connection for tinnitus. She attributes her current tinnitus to acoustic trauma experienced during active service while working in infantry, gun crews, and as a seaman specialist. Specifically, the Veteran contends that she was required to practice on a firing range often and keep a radio up to her left ear in her duties as a dispatcher for the jail. She does not recall wearing hearing protection. The Veteran's DD 214 confirms service in infantry, gun crews and as a seaman specialist. Therefore, as noise exposure is consistent with the Veteran's military occupational specialty, the Board concedes that the Veteran experienced in-service acoustic trauma. 38 U.S.C.A. § 1154(a) (2013). There are no complaints, diagnoses, or treatment of tinnitus in service or post-service treatment records. In March 2009, the Veteran was afforded a VA audiological examination during which the examiner noted that there was no current complaint of tinnitus. In her notice of disagreement received in March 2010, the Veteran said she had "been bothered by problems with the ringing since [service.]" On her May 2010 Substantive Appeal she reiterated that she feels her tinnitus is the result of noise exposure during service and she did not recall being asked about ringing in her ears during the VA examination. Despite the absence of medical evidence, the Veteran is competent to provide a diagnosis of tinnitus because it does not involve a complex medical question. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Furthermore, the Veteran is competent to report experiencing tinnitus since service. For VA purposes, tinnitus is the type of disorder associated with symptoms capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). Thus, if a veteran reports ringing in his or her ears, then a diagnosis of tinnitus is generally provided without further examination. In addition to the diagnosis of tinnitus being reliant upon lay statements, the etiology of the disorder is similarly reliant upon them. The date that a veteran reports that the tinnitus symptoms began is generally accepted as the date that the disorder began, without further examination, unless there is something in the record that would call the veteran's statement into question. The Board acknowledges that the Veteran did not report symptoms of tinnitus during the March 2009 VA examination. However, she later stated that she did not recall being asked about tinnitus during the VA examination. The Board finds no reason to doubt the Veteran's credibility. Thus, the evidence shows that Veteran has experienced tinnitus since service. For the reasons discussed above and resolving all doubt in favor of the Veteran, the service connection for tinnitus is warranted. ORDER Service connection for tinnitus is granted. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs