Citation Nr: 1338497 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 12-21 013 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD W. Doernberg, Associate Counsel INTRODUCTION The Veteran served on active military duty from March 1968 to October 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by the Buffalo, New York Regional Office (RO) of the Department of Veterans Affairs (VA). A review of the Virtual VA paperless claims processing system reveals treatment records from August 2010 to May 2012. A review of the Veterans Benefits Management System does not reveal any additional documents pertinent to the present appeal. FINDING OF FACT There is competent evidence that relates the Veteran's current tinnitus to active duty. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.159, 3.326(a) (2013). As the Board is granting the claim for tinnitus, the claim is substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet. App. 362, 367-68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"). Analysis Generally, service connection may be established for 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(a). In order to establish service connection, the following must be shown: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). Service connection may also 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). The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth in 38 U.S.C.A. § 5107. A Veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See also 38 C.F.R. § 3.102 (2013). When a Veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). First, the Veteran has a present disability. Medical evidence reflects current complaints of tinnitus. Private treatment records include a diagnosis of tinnitus since February 2007. An October 2010 VA treatment record noted the Veteran's complaints of constant tinnitus for the prior two years. The March 2011 VA examiner also noted the Veteran's complaints of worsening bilateral tinnitus since 2006 or 2007. The Veteran also states in his VA Form 9 that he has had tinnitus since service. A layperson is competent to diagnose tinnitus. Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Veteran is therefore competent to report that he has tinnitus. The Board finds his statements are credible with respect to a current disability because these statements have been repeated to a variety of medical professionals. The Board finds that the Veteran has a current disability. Shedden, 381 F.3d at 1167. Second, the Board finds that the Veteran experienced an in-service injury. According to the Veteran's DD-214, his military occupational specialty was general mechanic. Service treatment records show that the Veteran experienced a baseline shift in hearing. The VA examiner described this baseline shift and noted combat noise exposure. The VA social, work, and industrial survey recorded that the Veteran worked as a generator operator and machine gunner on a recovery tank. The survey also recorded the Veteran's combat experience in at least one battle. The record therefore reflects that the Veteran experienced in-service acoustic trauma and auditory injury. Id. Third, the Board finds a causal relationship between the present disability and the Veteran's in-service acoustic trauma because the evidence is in equipoise. The March 2011 VA examiner provided a negative nexus opinion for the Veteran's tinnitus based upon the reported time of onset which was 35 years after military noise exposure. The examiner noted the Veteran's occupational history and concluded that his tinnitus was instead due to occupational noise exposure. The examiner found a nexus between the Veteran's bilateral hearing loss and service based upon a baseline shift in hearing from enlistment to separation. In his July 2012 VA Form 9, the Veteran states that he has experienced tinnitus since service, but did not report complaints to other people until later. In evaluating the probative value of competent medical evidence, the Court has stated that the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Further, the credibility and weight to be attached to these opinions are within the province of the adjudicator. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Here, the Board finds the March 2011 VA audiological opinion to be problematic. While the examiner definitively concluded that the Veteran's tinnitus is not caused by or a result of military noise exposure and provided a rationale in support of that opinion, the examiner did not offer an opinion as to whether the Veteran's tinnitus was secondary to hearing loss which the examiner found was incurred in service. The Board also notes that while the VA examiner relied on records and reports concerning the onset of the Veteran's tinnitus, the VA examiner did not express a finding as to the onset of the Veteran's tinnitus. The Board gives weight to the Veteran's statement in his VA Form 9 that he has experienced tinnitus since service but failed to report his symptoms to others. The Veteran is competent to report such symptoms, which are within the realm of his personal experience. Charles, 16 Vet. App. at 374. The Board also finds that the Veteran's statements are credible because there are no contradictory statements within the record and the Board finds it plausible that the Veteran would fail to report his symptoms to medical personnel until much later. The Board finds that this evidence supports a finding that the Veteran experienced continuous symptoms since service. The weight of the evidence is at least in equipoise with respect to a nexus between the Veteran's current tinnitus and in-service acoustic trauma. Shedden, 381 F.3d at 1167. The Board acknowledges that the evidence regarding whether the Veteran's tinnitus was incurred in active duty is conflicting. However, given the Veteran's in-service noise exposure and resulting hearing problems, the Board finds the evidence is at least in relative equipoise. Accordingly, resolving the benefit of the doubt in the Veteran's favor, the Board finds the Veteran's current tinnitus was incurred in active duty. Therefore, service connection for tinnitus is warranted. Gilbert, 1 Vet. App. at 53-56. ORDER Entitlement to service connection for tinnitus is granted. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs