Citation Nr: 1338498 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 12-26 641 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD L. Reeder, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1987 to August 1987, from September 1991 to January 1992, and from November 1996 to June 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied service connection for tinnitus. The Board notes that in addition to the paper claims file in this case, an electronic VA paperless claims file has also been associated with the Veteran's claim, and has been reviewed. FINDING OF FACT The Veteran's tinnitus had its onset in service. CONCLUSION OF LAW The Veteran's tinnitus was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) In light of the fully favorable determination in this case, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations. II. Service Connection The Veteran seeks service connection for tinnitus, which he contends initially manifested during his period of active service in Bosnia in the late 1990s. Service connection may be established for a 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. Regulations also provide that 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). Generally, in order to establish service connection, there must be medical or, in certain circumstances, lay evidence of (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. See 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009). When determining entitlement to service connection, the Board is required to give due consideration to all pertinent medical and lay evidence. 38 U.S.C.A. §1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition, the layperson is reporting a contemporaneous medical diagnosis, or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 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(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As an initial matter, the Board finds that the Veteran currently has tinnitus. The Veteran reported, during his April 2012 VA examination, that he had gradual onset tinnitus that began during his service in Bosnia in the late 1990s. The Veteran is considered competent to report the presence of tinnitus, and there is no indication from the record that his account of current tinnitus is not credible. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"). Turning next to in-service incurrence of tinnitus, the Board finds that the Veteran's reports of his noise exposure in service and the onset of his current tinnitus are competent and credible. The Veteran's lay account of his exposure to military noise is consistent with the circumstances of his service. His service records show that his military occupational specialty (MOS) during the period of service in question was that of a Civil Affairs Direct Support Team Assistant Operations Officer attached to a Military Police Battalion Task Force forwardly deployed to Bosnia-Herzegovina. The Veteran has consistently contended that he was exposed to gunfire and explosions while on patrol in Bosnia, and that his current tinnitus began during that time period. He provided additional descriptions in connection with a subsequently granted claim for posttraumatic stress disorder that corroborate his account of his duties in Bosnia. During a psychiatric examination for that claim, the Veteran indicated he had patrol duty and that several of the men in his company were killed by an improvised explosive device. During the pendency of the appeal, the Veteran's account of both when his tinnitus began and how he was exposed to noise during his time in Bosnia have remained consistent throughout the course of this and other claims. At this time, the Board also notes that the Veteran has consistently maintained that he wore hearing protection while serving as a police officer post service and that he has not been exposed to excessive noise since service. The Veteran received a VA audiology examination in April 2012. The VA examiner did not contest the Veteran's allegation that he currently had tinnitus. However, he opined that the Veteran's tinnitus was not related to service. He reasoned that there was no evidence documenting a complaint of tinnitus during military service and that the tinnitus was of gradual onset and not identified with a specific military history. However, a lack of contemporaneous medical records does not, in and of itself, render the Veteran's lay evidence not credible. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Additionally, the examiner did not consider the Veteran's competent and credible account of the onset of his current symptoms in service, and provided no reason for rejecting the lay history. As a result, the Board accords the examiner's opinion little probative weight, and finds the Veteran's account of the onset of his symptoms in service more probative in this instance. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury but relied on the service medical records to provide a negative opinion). In this case, the Board finds that the Veteran's competent and credible lay evidence is sufficient to establish a nexus between his service and his current tinnitus. Lay evidence can be competent and sufficient to establish etiology if the layperson is competent to identify the medical condition and lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d 1313; Jandreau, 492 F.3d 1377. Here, the Veteran is competent to identify the medical condition of tinnitus and his lay testimony described in-service ringing in the ears that supported the undisputed current diagnosis. Charles, 16 Vet. App. 370. The probative independent evidence of record supports the Veteran's claim as well. Therefore, service connection for tinnitus is warranted. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). ORDER Service connection for tinnitus is granted. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs